3-16-2021; 21st Century Cures Act Should Open Up Medical Notes for Patient Use; Appellate Court Rules Injured Worker Can't Sue Employer's Parent Co for Negligence and more

Synopsis: Federal Rules Mandating Open Medical/Treatment Notes—Electronic Medical Records may be Free for Claimants in WC across the U.S.

Editor’s comment: Taking effect in twenty (20) days or on April 5, 2021, rules implementing the bipartisan federal ‘Cures Act’ specify that clinical/medical notes are among electronic information that must not be blocked and must be made available free of charge to all patients. I assure you this includes workers’ comp claimants who obtain care. To meet the interests of some patients, the rules allow specified exceptions that I feel make sense—see the two exceptions at the bottom.

I continue to monitor details affecting the implementation of what is also called the Information Blocking Rule and watch this space for updates as they appear.

Federal Rules on Interoperability and Information Blocking, and Open Notes

The program rule on Interoperability, Information Blocking, and ONC Health IT Certification, which implements the 21st Century Cures Act, and requires U.S. healthcare providers give patients access without charge to all the health information in their electronic medical records “without delay.”

Common questions about the Information Blocking rule can be found in this FAQ.

View the full USCDI

The eight (8) types of clinical notes that must be shared are outlined in the United States Core Data for Interoperability (USCDI), and include:

• consultation notes

• discharge summary notes

• history & physical

• imaging narratives

• laboratory report narratives

• pathology report narratives

• procedure notes

• progress notes

Clinical notes to which the rules do not apply:

1. Psychotherapy notes that are separated from the rest of the individual’s medical record and are recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session. Note: All clinicians and organizations are required to share medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

1. Information compiled in reasonable anticipation of, or use in a civil, criminal or administrative action or proceeding.

What is the timeline for when these new rules go into effect?

Under this new rule, clinical notes must be shared by health systems by April 5, 2021, and shared with a patient’s 3rd party application (“app”) that may be downloaded to a smart phone or other device by October 6, 2022.

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

Synopsis: Injured Construction Worker Can't Sue Employer's Parent Company for Negligence

Editor’s comment: In Munoz v. Bulley & Andrews LLC, No. 1-20-0254, 02/10/2021, the Illinois Appellate Court ruled a worker injured on a construction project could not proceed with a tort suit against the parent company of his direct employer because it secured workers’ compensation insurance coverage for him.

In Munoz, an LLC named RAR2-222 South Riverside LLC contracted with Bulley & Andrews LLC to serve as the construction manager for a project at a property owned by RAR2. The contract required Bulley obtain a workers’ compensation insurance policy for its employees. Bulley obtained a policy from Arch Insurance Group that covered its employees as well as those of Bulley & Andrews Concrete Restoration.

Although Bulley Concrete was a wholly owned subsidiary of Bulley, the companies had different presidents, employed different people and had different specialties. Bulley used Bulley Concrete workers to perform concrete work for the RAR2 project, though it did not execute a subcontractor agreement with Bulley Concrete as it did with the others.

Donovan Munoz worked for Bulley Concrete. He injured his back in December 2016 while working on the RAR2 project. He has an IL WC claim still pending.

In the civil claim, it was alleged workers placed blankets on top of freshly poured concrete to prevent it from freezing. Precipitation caused the blankets to become waterlogged, and Munoz hurt his back while trying to move one. Bulley paid workers’ compensation benefits to Munoz.

In April 2019, Munoz filed suit against Bulley, RAR2 and Behringer Harvard South Riverside LLC, another alleged owner of the building. Munoz claimed that the blankets placed on top of the concrete were worn out and riddled with holes, which allowed water penetration. He claimed this caused the blankets to become unreasonably dangerous.

Bulley filed a motion to dismiss, contending Munoz’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act. The trial judge granted the motion.

On appeal, the Illinois Appellate Court ruled the IL Workers’ Compensation Act generally bars a worker from seeking a civil remedy from his employer for a work-related injury. The court further ruled Illinois case law has established civil immunity extends beyond a worker’s immediate employer to a party that has borne the costs of the workers’ compensation insurance coverage for the injured worker. In this case, the court noted, RAR2 created a legal obligation for Bulley to pay for workers’ compensation benefits of Bulley Concrete’s employees, including Munoz, and the obligation predated his injury.

The court noted Bulley satisfied its obligation by purchasing coverage through Arch, which allowed Munoz to collect benefits. The court, therefore, ruled Bulley was entitled to use the exclusive remedy provisions of the IL WC Act. The Appellate Court affirmed the lower court’s dismissal.

To read the court’s decision, click here.

3-1-2021; Start Using UR for Your IL WC Claims; Kevin Boyle on New IN Covid Protection for Businesses/Local Gov'ts and more

Synopsis: One of the Best Defense Tools in IL WC—Utilization Review.

Editor’s comment: I am handling a pending IL WC claim where Claimant has attended over 60 PT visits and wants another dozen more! What is the best way to block such obvious over-utilization? UR!!!

I feel so strong about this defense concept, I reached out to Jill Pessman from Triune Health Group for her thoughts and assistance.

Please note my strong opinion the best thing about prospective UR is simple—when you use UR, you aren’t worried about politics in a liberal IL WC Commission. You are concerned with the “science” that UR brings to the claims table long before you litigate any issue.

Please further note the number one cost in WC across the globe and in your WC claims is medical. If you can control medical costs, you can control WC costs. In my view, the fastest and easiest way to control medical costs in IL WC is to start with UR early and use it often. The physicians and surgeons subject to UR analysis aren’t always thrilled about a UR determination and they can file a UR appeal to insure a specialist looks at the same chart they are looking at. The UR appeal is quick and generally painless—either the UR specialist certifies or they don’t. And please note the UR appeal isn’t decided by an IL WC Arbitrator or Commissioner.

Please also remember this is a method to block what I call “stupid medical stuff.” If a doctor recommends “medial branch blocks” or “trigger point” injections or a “discogram,” you may be able to cut such silliness off before it enters the WC medical chart.

And what might be the very best thing for any pending WC claim—when UR stops/blocks further care, Claimant is MMI and you can usually stop TTD and then move at that point to seek settlement of litigated claims. If you aren’t sure, send a reply!!!

How Do You Put UR on Your IL WC Claims?

With Triune (and other UR providers), all of your Utilization Review (UR) needs are just a click away!  Here is a safe link: Utilization Review Referral | TRIUNE Health Group

What can UR do for you?

• Provide a sense of direction on a file ensuring medical necessity of proposed treatment (surgeries, injections), concurrent treatment (ongoing therapy or medication use) or retrospective treatment (all aspects of completed care). A UR allows you to stop payment for treatment that should not be considered, is not appropriate or not in the best interest of the injured worker.

• Provide a solid defense as URs are backed by guidelines and not a physician’s opinion making them strong at the Commission level.

• Addressing ongoing treatment informs the treating MD that someone is watching their plan of care and treatment is not open ended.

• Cost savings, of course! A UR is an inexpensive, quick tool (turnaround time 1-5 days if all medical records are included with the referral) that will allow you to deny unnecessary and excessive treatment. Physical Therapy and Chiropractic Therapy are two major areas being over-utilized by treating physicians; a UR will provide you the means to stop treatment when it is not medically necessary.

At TRIUNE Health Group they have a dedicated and experienced Utilization Management registered nurse handle your referral from start to finish. They review each and every record ensuring a complete set of medical records is available to their reviewing physician. If records are missing, they take immediate action to obtain them, as they want to provide you a highly defensible UR. They strive to only use licensed and actively practicing Illinois physicians to complete Utilization Reviews.

Triune Health Group Utilization Review Team

Direct line: 630 522 8927

Jill Pessman, RN   jill.pessman@triunehg.com

Amanda Yale, RN amanda.yale@triunehg.com

Please note I am not paid for nor do I have any financial interest in Triune Health UR. While I recommend them, there are lots of other great UR providers to choose from in managing IL WC claims. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Indiana Governor signs new bill protecting Indiana businesses and others from COVID-19 claims. Article and analysis by our Indiana WC Defense Team Leader, Kevin Boyle, J.D

Editor’s comment: Last week, the Indiana Governor signed a new law that gives broad protections to Indiana employers, manufacturers, businesses and others from lawsuits that could blame them for contracting COVID-19. This law blocks tort claims, including class actions, against companies, governments, and individuals who are accused of negligently spreading the virus, like a “liability shield” similar to those enacted by several other states.

The bill also benefits the broader drug and medical supply industry by blocking liability for makers and suppliers of medicines, protective equipment, supplies, and tests used to prevent the spread of Covid-19 or treat the disease.

The law (Senate Enrolled Act No. 1, First Regular Session of the 122nd General Assembly (2021) is retroactive to March 1, 2020 (the date just before the first coronavirus infection was confirmed in Indiana), and only allows lawsuits against businesses when “gross negligence or willful or wanton misconduct” that can be proved by “clear and convincing evidence.” Issues were raised about whether it will block lawsuits against nursing homes over illnesses and deaths among residents. However, the bill sponsor indicated that questions about whether to shield nursing homes and other medical providers from lawsuits will be addressed in a separate bill that will go before legislators later during this year’s legislative session.

It is also hoped the law saves municipal governments and the Indiana A.G. time and taxpayer dollars by blocking suits by prisoners with claims the government did not protect them from infection while incarcerated.

If you’d like a copy of the new law, let me know. This article was researched and written by Kevin Boyle, JD. Kevin can be reached at kboyle@keefe-law.com.

2-22-2021; Madigan Quits!!! What Does It Mean for IL WC and Illinois Gov't?"; Biometrics Act Litigation Moves to the IL Supreme Court--IL Business, Keep Your Fingers Crossed!! and more

Synopsis: Madigan Quits!!!! What Does It Mean for IL Work Comp and Illinois Government?

Editor’s comment: Starting in November 1970 and continuing to the end of this month, Illinois voters have seen the longest tenured state legislative leader in U.S. history in the person of Michael J. Madigan. He has had an interesting and bittersweet run. I can’t stop giggling about his statement that he “dedicated [himself] to democracy.” What an absolute hoot!—in my view the State of Illinois under Madigan has become the “least democratic” State in the history of States.

What Does Madigan’s Departure Mean to IL Workers’ Comp?

Well, I have been writing this KCB&A IL WC Law Update since 1993. If you recall over the years, I have criticized what I have called the “Secret Squirrels” of IL WC because no one ever tells the public when there is an opening for an Arbitrator, Commissioner or Chair-person. These positions are filled in total secrecy—I don’t feel that is “democratic.” I feel strongly and my sources have all told me that secrecy concept came straight from Mike Madigan. In other states, the head of our equivalent of the IL WC Commission is advertised openly and interviews are conducted in an “open meetings” environment. In contrast, what happens in Illinois is business pays every cent of the cost of administering workers’ comp while having very little say as to who our hearing officers and administrators will be.

Similarly, lots of IL WC case law happens in a shocking and unexpected fashion, like the recent ruling in McAllister that has everyone on the defense side shaking their heads about how suddenly ultra-liberal Illinois work comp got even more mega-ultra-liberal. Trust me, former Speaker Madigan had great sway over who would be a judge/justice and a member of the IL WC Appellate panel. Madigan controlled/created our wildly high judicial compensation that has to be the most expensive and lucrative in the U.S. for salaries and fake IL gov’t pensions.

Please note almost all IL State positions under Madigan have one salary concept across a State that has wildly different cost of living values. Nothing was ever done under former Speaker Madigan to save taxpayers a couple of bucks. For example, a judge or justice in the Chicago area making about $200K is doing well—the same salary for a judge/justice in Galesburg or Freeport or Collinsville may be the highest salary of any worker in that entire county!! Why does that happen? Well, if you want “control” or sway with the judiciary, one way to get that done is to “over-pay” or “over-retire” them. This is just one example of what I call “vote-buying.” If you give a worker way too much money to do way too little, you have a loyal voter and they are going to tell their friends and family to vote for you.

Please also remember Mike Madigan and his team almost single-handedly turned Illinois from a two-party State to a one-party State by gerrymandering just about every significant IL political district into Madigan’s own image and likeness. This means things aren’t going to return to “normal” to have Republicans and Independent voters have some say in this supposedly “democratic” IL State government until decades pass and people move around, as we do.

We don’t see things in our one-party State getting better for IL businesses any time soon. I feel our WC rates are going to continue to spiral in an unchecked fashion. I feel our hearing officers are going to be professional and follow the law but the framework surrounding them is going to lead to higher and bigger WC settlements and awards. I have noted the new trend that everyone on the Plaintiff/Petitioner side have started to seek Body as a Whole awards for literally any condition and injury—this means IL business isn’t going to get credit for anything paid in past claims. I forecast Claimants receiving lifetime awards of 200%, 300% LOU and more of the body—it isn’t going to happen on a broad spectrum on an overnight basis but I am seeing this happening right now and I don’t see it stopping.

Big picture—Madigan has moved on. We are sure he was a driving and dynamic force in the IL WC system. Watch this space for new developments and cost drivers moving forward.

What Does Madigan’s Departure Mean to IL Gov’t?

Well, from my perspective, IL Gov’t is facing challenges that are going to be worse until someone fixes them. We have the worst credit rating of any State in U.S. history and owe more than $150B in debt. We have the highest combined sales, real estate, income and other taxes of any U.S. State—we can attribute some of that to our departed “dedicated to democracy” leader. You can’t set up fake gov’t pensions to require taxpayers to pay spiraling retirement costs of retired State workers for the rest of their life, as Madigan did. You can’t force taxpayers to pay almost 100% of retired State workers’ healthcare, as Madigan did.

Does Former Speaker Madigan Depart IL Gov’t as a Billionaire?

I don’t know why the media never mentions the zillions of dollars Mike Madigan clearly made in his “side-job” as a RE property tax appeal attorney. If you take a look at this article, you may see what I mean:

https://www.illinoispolicy.org/investigation-madigan-firm-the-biggest-player-in-commercial-property-tax-appeals/

In just five years of a fifty year career, Mike Madigan’s firm got $1.7B (yes, billion!!) in tax reductions for their clients. To my understanding they typically charge 33.33% fees on those reductions. Simple math indicates they would make close to $600M in fees for that five year period. Please note they may discount some of these fees but even with dramatic discounts, they could be making $300M, $400M, $500M, right? Over the 50+ years he was involved in the RE Tax appeal process, Mike Madigan and his law firm had to bank something like a billion or more.

Please also note I never once heard IL State government conduct investigations or hearings into why our Cook County Assessor always routinely screws up our RE tax assessments to then have other private attorneys file fake “appeal” documents that aren’t legal at all. No one briefs a Cook County RE tax appeal and there are typically no oral arguments in RE tax fake appeals. Despite it being a billion-dollar legal market, no law school in IL teaches Cook County tax appeals and, to my knowledge, there has never been a case that reached the IL Supreme Court from such “appeals.” Please note RE tax appeals are just math, folks—use one of those new-fangled “computers” to get it right the first time and stop the goofy, fake RE tax appeal process. How many factors do they have to consider to insure your RE tax bill is accurate—20, 500, 5,000? Trust me, computers handle such challenges in about a millisecond. We are being flummoxed to think these RE tax “appeals” are real. We need what everyone else in the country appears to have—the assessor hits the right number and you owe it. You don’t have to waste time with fake appeals and pretend you got a better deal because your attorney filed a goofy form and cut themselves in for a third of your supposed “savings.”

As I said above, Madigan has moved on. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Biometrics Act Litigation Moving to IL Supreme Court—IL Business Keep Your Fingers Crossed!!!

Editor’s comment: High Court to Review Decision Holding WC Exclusive Remedy Doesn't Bar Privacy Act Claim. Big picture, this is business-busting legislation if it isn’t blocked in the courts. You may note the tech company Facebook recently settled an Illinois biometrics claim from their users for Illinois-based biometric violations for $650,000,000! The difference between the Facebook litigation and this case is the employer-employee link.

Basically, lots of employers were using biometrics or “touch id’s” to track employee hours and other stuff. The Biometrics Act provides guaranteed damages for each time a biometric was improperly saved or recorded. For one of your workers who checked in and out every morning and night, you could owe them thousands and thousands of dollars plus attorney fees and costs. Obviously, your workers will be laughing all the way to the bank to receive such largesse.

So what just happened?—last week, the Illinois Supreme Court granted leave for 14 Illinois employers including lead Defendant Symphony Bronzeville Park to consider an appeal of an appellate court decision holding that the exclusive remedy of workers’ compensation did not prohibit a worker from pursuing a lawsuit for alleged violations of the Biometric Information Privacy Act. The high court announced its decision to accept the appeal on Wednesday. We can expect this is going to be pending before our highest court for some time.

The Illinois Appellate Court in September 2020 published a decision in Marquita McDonald v. Symphony Bronzeville Park, et. als., holding that violations of the Biometric Information Privacy Act are not precluded by the exclusive remedy of workers’ compensation.

Plaintiff McDonald filed a class action accusing Bronzeville of violating the Biometric Privacy Act, which prohibits businesses from collecting biometric information without notifying a person in writing that it is being collected and stored. She alleges in her complaint that she was required to provide biometric information to use a fingerprint-based time clock system between December 2016 and February 2017. Trust me, she is a very carefully picked “point of the spear.” It is hard to imagine

Defendants and parties amicus in Symphony Bronzeville Park, et. als. argued Section 5 or the exclusive remedy provisions of the IL Workers’ Compensation Act barred the lawsuit.

The Illinois Appellate Court in September said exclusive remedy can’t preclude a complaint for statutory damages that isn’t compensable under the state’s workers’ compensation laws. The IL Appellate Court said it failed to see “how a claim by an employee against an employer for liquidated damages under the privacy act — available without any further compensable actual damages being alleged or sustained and designed in part to have a preventative and deterrent effect — represents the type of injury that categorically fits within the purview of the IL Workers’ Compensation act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”

With respect to the members of the IL Appellate Court who ruled in this claim, I agree with Defendants—you do not have to be “touched” to receive WC benefits and be “actually injured” in IL. There are numerous cases, like Pathfinder, where the discomfiture of a co-worker in seeing a co-worker seriously injured was itself an “actual injury” and benefits were awarded and paid. There is a City of Springfield ruling where a police officer asserted harassment and that was found compensable under the IL WC Act. Basically, any “personal injury” between employer and employee is supposed to be workers’ comp.

And finally, I don’t consider the “incident” in McAllister mentioned above to be an “actual injury.” The guy stood up and felt a problem with his leg. The “actual injury” described by such facts is hogwash but if we are going to define standing up as an “injury” then biometric dysfunction as it arises vis a vis employer and employee should be an “actual injury” to block common law claims against the employer. You can’t have it both ways. In the WC setting, we may expect awards/reserves in the range of 2-20% BAW for biometric dysfunction, I would bet.

We will have to wait and see. For news as it unfolds, watch this space. I appreciate your thoughts and comments. Please post them on our award-winning blog.