12-13-2021; "Two Doctor" Rule in IL WC and Other Thoughts; WC/OD Asthma Claim Denied by IL Appellate Court; We mourn the passing of Ellis Sostrin and more

Synopsis: The “Two Doctor” Rule in IL WC and Related Concerns about Controlling Medical Care in this Liberal State

Editor’s comment: A fundamental benefit of the Illinois Workers’ Compensation Act is the employer’s liability for costs associated with reasonable and necessary related medical care pursuant to the effects of or the aggravating effects of accidental injury or illness. The section of the Illinois Workers’ Compensation Act which discusses the employer’s liability to pay for such medical services selected by the employee is discussed in Section 8(a) of the Illinois Workers’ Compensation Act which limits the employer’s liability to the following:

(1) all first aid and emergency treatment; plus

(2) all medical, surgical and hospital services provided by the physician, surgeon or hospital initially chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said initial service provider or any subsequent provider of medical services in the chain of referrals from said initial service provider; plus

(3) all medical, surgical and hospital services provided by any second physician, surgeon or hospital subsequently chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said second service provider or any subsequent provider of medical services in the chain of referrals from said second service provider. Thereafter the employer shall select and pay for all necessary medical, surgical and hospital treatment and the employee may not select a provider of medical services at the employer’s expense unless the employer agrees to such selection. At any time the employee may obtain any medical treatment he desires at his/her own expense.

In my view, the term “reasonable” within the context of Section 8(a) of the Illinois Workers’ Compensation Act refers generally to the modality and costs of care and how those costs compare to what is being charged by other medical providers with similar qualification providing similar modalities of care and treatment. The term “necessary” within the meaning of Section 8(a) of the Act refers to whether the necessity of the medical care and treatment which is the subject of the bill being submitted to the employer for payment relates to the effects of or the aggravating effects of the accidental injury or repetitive trauma manifestation at issue.

Amendments to the original Section 8(a) of the Illinois Workers’ Compensation Act were made. The most notable change to Section 8(a) of the Act at that time was the inclusion of what has now come to be known as the “two doctor rule.” Simply stated, the two doctor rule limits the injured worker to two medical providers of their own choosing. However, the injured worker can still see as many medical providers as is necessary providing the injured worker is referred to subsequent physicians by one of the two medical providers. In other words, the injured worker is entitled to two chains of referred doctors providing their care is reasonable and necessary.

Many times, despite the obvious nature of a work injury and the necessity for related medical care, medical providers, particularly specialists, will insist on receiving authorization from the claims adjuster in the workers’ compensation case before the specialist will provide the injured worker the care he or she needs.

Reining in What Appears to be Unlimited Medical Care in IL WC

In my view, the three top “tools” for IL WC adjusters, risk managers and defense attorneys implement to limit or block medical care are

1. Utilization Review—submitting a claim for medical care or surgery or PT thru UR provides all sides a quick and simple analysis of what the world of medicine offers to insure appropriate care but not “over-care.” I personally feel UR is not considered or used enough by many IL WC adjusters. When you, as an adjuster see a doctor extending care or asking for authorization for too much treatment, UR should start and remain in place for any and all care from that point forward. Please note UR has “presumptive effect” if it is properly implemented. Please note UR analysis is technically not supposed to include opinions about causal connection.

2. IME’s or Independent Medical Exams—this is an exam of the claimant by an expert in the field who can opine about the nature of the accident, causal connection and the appropriateness of surgery and medical care. An IME expert can also opine about restrictions and return to work. The problem with IME’s is there is a cost for hiring a great expert and there are delays in setting the exam and getting reports. I recommend veteran and well-versed experts who know the IL WC system. If you want a recommendation on the right expert for your claim—send a reply.

3. Surveillance—this is a tool that makes sense in bigger claims. Please see the review of a recent decision involving surveillance below. If you can catch a Claimant acting in a fashion inconsistent with their complaints and requested care, it is a strong tool to block over-treatment. In some settings, you may want to share the surveillance results with an IME expert to give them a “big picture” of how claimant appears when they aren’t in a doctor’s office. If you disclose the surveillance to the IME doctor, it will almost certainly be disclosed to opposing counsel.

FCE’s or Functional Capacity Evaluations are Routinely Hogwash—Please don’t approve or authorize.

An FCE is a supposed “test” of a Claimant at some point as they approach MMI or maximum medical improvement. The FCE test is a two-hour or four-hour job focused analysis. The problem with the FCE process is there is no conceivable way to insure the test has any validity. Lots of Claimants will feign injury/complaints or lack of recovery to then have the person performing the test assert the worker has permanent restrictions. When that happens, IL WC claims move into wage loss differential or total and permanent disability values that can run into the six and seven-figure range.

What drives me slightly batty about FCEs is a given Claimant will be with a registered physical therapist who tracks their recovery and abilities for weeks and sometimes months. The RPT will carefully document improvement and capabilities to then, at the end of PT, have claimant undergo a short FCE test and summarily be adjudicated “disabled” in contradiction of PT records. Validity for some FCE testers can be based on “grip strength” for a worker with knee or spine issues—I have no idea how grip strength has anything to do with such claims.

I would ask the various FCE providers not to waste their time and my time writing to tell me their FCE’s are brilliant and I am wrong. I have grown tired of hearing it and won’t agree so, please save your time.

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Synopsis: IL Gas Worker Loses WC/OD Claim for Alleged Aggravation of Asthma.

Editor’s comment: The IL Appellate Court issued a ruling denying workers compensation benefits for a gas journeyman with pre-existing asthma who claimed he was exposed to toxic fumes. I feel the surveillance evidence in this claim strongly supported a denial of the claim for total and permanent disability.

Claimant, an employee at Ameren Corp. in Springfield, Illinois, was diagnosed by one doctor with a “permanent and irreversible condition” of “severe irritant induced workplace associated bronchial reactivity” after inhaling gas fumes in 2013.

Claimant sought medical treatment after the alleged first exposure in September 2013 and returned to work two days later. In May 2014, he was diagnosed with a bronchial condition associated with workplace irritants and was advised to take work leave. He later returned to work in September 2014 and claimed he experienced a second work-related exposure.

In reviewing his WC/OD compensation claim, some medical records indicate Claimant’s respiratory issues and preexisting asthma were temporarily exacerbated by the two gas exposures, as outlined in part of the appellate opinion.

The Arbitrator found Claimant failed to prove any permanent ill effects from the exposures and denied this claim. Respondent accepted the claim to an extent and paid for medical treatment and other benefits for what the arbitrator found to be temporary exacerbations.

Claimant appealed and lost at the IWCC. The Commission's decision denying the claim for total and permanent benefits was reversed in Circuit Court. Respondent appealed, contesting the claim for permanent loss. In the IL Appellate Court, WC Division, they noted medical records were introduced that revealed 15 or 16 separate occasions from May 1999 to August 2013 where Mr. Duncan complained of pulmonary symptoms, including shortness of breath, coughing, tightness in his chest, and wheezing.

While Claimant was on disability leave from work, investigators videotaped him attending an outdoor barbecue at the Elks Lodge in Fairview Heights, Illinois. Claimant stood next to a smoking grill, wrapped hotdogs and hamburgers, and placed them on trays. The barbecue smoke did not appear to cause him any respiratory distress. He unloaded children's bicycles from a pickup truck and jumped down from the bed of the truck. He walked around on the grounds. He stood in a group of people, one of whom was smoking cigarettes. The tobacco smoke did not appear to bother Duncan. On a different date, at the Elks Lodge, he was videotaped moving picnic tables.

In the arbitration hearing, Claimant asserted, at the Elks Lodge, the wind was blowing hard and he was upwind of the barbecue smoke and cigarette smoke.

The IL Appellate Court reversed the circuit court's judgment and reinstated the Commission's denial.

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Synopsis: The IL WC community mourns the passing of attorney Ellis Sostrin, may he forever rest in peace.

Editor’s comment: Attorney Sostrin was one of the top Claimant attorneys of a generation at the IL WC Commission. He is survived by his daughter who is as sharp and as smart as her amazing father. Ellis and I didn’t always see eye-to-eye but we had great respect for each other. He was a kind, hard-working and congenial man and I think a part of him will always be in our hearts.

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11-29-2021; Covid-19 and Its Late-comer Mutants Are Staying for Now—What is Happening in IL Work Comp/OccDisease; Understanding IL WC Status calls and more

Synopsis: Covid-19 and Its Late-Comer Mutants Are Staying for Now—What is Happening in IL Work Comp/OccDisease.

Editor’s comment: Decisions from IL WC arbitrators indicate the “presumption” of coverage for Covid-19 exposure/illness should be rebuttable, if done so carefully. Early results indicate Illinois employers and insurers might be able to rebut the presumption making COVID-19 or its new mutations compensable by providing

• Evidence of employer efforts to mitigate the spread of the disease in the workplace;

• A contact history of other folks to whom the worker might have been exposed in the workplace;

• Documentation of the worker working from home or outside the traditional workplace;

• Use of PPE or personal protective equipment by the worker.

Please note my view Covid-19 is, to some extent, an all-or-nothing-at-all WC-OD claim. Some folks who test positive for Covid-19 have little to no side-effects and return to full health rapidly. Some folks can be very, very ill and/or pass from this awful bug. The nature of such serious WC-OD claims can be devastating with six and seven-figure reserves.

Last year, Gov. Pritzker signed House Bill 2455, creating a presumption COVID-19 is compensable for anyone in an “essential business” with more than 15 employees. Most observers feel the definition of essential businesses is so encompassing it includes almost all IL employees.

This bill allows employers and insurance carriers to rebut the presumption of Covid-19 infection when:

§  Claimant worked away from your normal workplace for 14 or more consecutive days immediately prior to getting sick.

§  The employer used workplace sanitation, social distancing and health and safety practices for at least 14 days prior to the claimed injury.

§  Claimant was exposed to the Covid-19 by a defined source outside employment.

Please also note Illinois is a one-party liberal state and by all appearances is going to remain a one-party state for a generation or more due to what I feel is our impossible-to-fund-fake government pensions. In a one=party state, I feel it is going to be challenging to get a defense decision without overwhelming evidence of infection outside the workplace.

The first reported IL WC-OD decision addressing the presumption and coverage for a Covid-19 infection, was filed October 2021. You may note, from the media report I have reviewed, it appears the employer lost the dispute.

Claimant worked as a computer operator, and the employer met the wide IL WC-OD definition of an essential business (I am unsure what is “essential” about operating a computer). Claimant tested positive for COVID-19 in April 2020 and claimed he was exposed to coronavirus at an on-site work meeting earlier in April. The employer argued they implemented safety measures, including sanitation and handwashing stations, and encouraged workers to maintain social distancing. The company also said it was possible Claimant, who was in the company of his family, could have been exposed outside the workplace via family and friends.

The employer presented evidence at the time the worker got sick, between 10-15% of its staff had COVID-19. The infection rate across the County was triple that percentage but there still was evidence the bug was present in the workplace in question.

The arbitrator noted evidence the employer implemented workplace efforts to reduce transmission, and confirmed that evidence could be sufficient to rebut the presumption. However, the arbitrator also found there was no evidence the employee had direct contact with the virus outside of the workplace and that it was more likely than not that he was exposed to the disease through employment. Benefits were awarded.

The defense team at KCB&A has a number of Covid-19 claims pending that we are aggressively handling in the best interests of our clients. We/I am happy to consult on a set of facts without charge—simply reply.

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Synopsis: Understanding IL WC Status Calls by Mike Palmer, J.D. and Eugene Keefe, J.D.

Editor’s comment: We’ve received many questions from our clients and friends asking how exactly an Illinois Workers’ Compensation “status call” works. In sum, the status calls are the lifeblood that drives closure of IL workers’ compensation files.

There are approximately 29 Arbitrators at the Illinois Workers’ Compensation Commission, with more on the way after recent appointments from Governor Pritzker. Once a case is filed with the IWCC, it is randomly assigned to an IL WC Arbitrator in the relevant area of our State. Somewhere around 35,000 new cases are filed annually in this State so with a “shelf-life” of about three years, there are about 100,000 or so in the works at any given time.

Once the computer puts the matter on the Arbitrator’s status call, it goes on a calendar, which runs every 90 days. For 2-1/2 years, the matter will roll over without either side needing to getting engaged, other than an emergency petition. The status call calendars can be readily accessed online via the IWCC’s great website—go to https://www2.illinois.gov/sites/iwcc/resources/Pages/calendars.aspx

Attorneys on both sides can elect to file a motion for hearing at the call, whether it be a Petition for Immediate Hearing under 19(b) or 19(d), a regular Request for Hearing, Motion to Dismiss, Motion to Withdraw or any other relevant motion. To our understanding, you can’t try a claim without a pretrial first.

Please also remember before most hearings/settlements, claims, legal and risk handlers in this State need to drive claims to MMI with claimant back to some sort of work, if and when possible. IL WC cases tend to sit longer until MMI and RTW are reached. Happy to explain or help with a given claim, send a reply.

An IL WC claim has a shelf life of three years before it is “above the redline”, which means the case has to start to reach disposition--it must have a hearing, be dismissed or be settled. These older cases take priority in getting a date before the Arbitrator, along with 19(b) Motions. However, since the Covid-19 Pandemic began, the redline has not been strongly enforced, leaving many cases sitting. We have been advised the redline will begin being enforced again starting November 1, 2021.

If the claim does not receive a hearing date or if it actually received a hearing date that was later determined to be not needed, it is what we call “returned to the call”. This means no action will be taken until the next cycle of status calls. Often a case will receive a pretrial date and the parties will work out issues prior to the pretrial and return the case to the call. If the case proceeds to pretrial, the parties discuss the claim before the Arbitrator and seek to resolve the issue at hand.

Please note the stallers and grinders on the Claimant side will always claim they “need medical records/bills” and can’t be prepared to try/settle their claims. There are any number of IL Claimant lawyers who assert this as a reason for endless continuances. What KCB&A lawyers do when we hear this dodge is to ask what doctors/records/bills are needed and we go after the bills/records to then share electronically with our clients and the attorneys on the other side.

As noted, the redline begins to be enforced next month. This will be great for Respondent attorneys looking to move files that have been languishing since the beginning of the pandemic as a result of inactive Petitioner’s attorneys.

Happy to discuss any aspect of this email topic and/or IL WC status calls. This article was researched and written by Mike Palmer, J.D. and your editor. Mike can be reached at mpalmer@keefe-law.com. Or just send a reply.

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10-17-2021; Appellate Court Surprise! IL WC Parking Lot Fall-Downs Can Be Defended; John Campbell and Shawn Biery to Present for the IL State Chamber Tuesday--Don't miss it! And more

Synopsis: IL WC Parking Lot Fall-Downs Can Be Defended and Won.

Editor’s comment: In Vaughn v. IWCC and Memorial Medical Center, our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.

In this opinion, the parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. To my understanding, the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.

Claimant was 60 years old at the time of the accident and testified to the following. 

• On October 29, 2015, claimant was employed by Memorial as a central processing technician.

• She testified her job duties included assembling and wrapping trays used to sterilize surgical equipment.

• She was required to load several trays, weighing 10 to 15 pounds, onto carts before pushing the carts into an autoclave. The carts were typically heavy, weighing as much as 300 pounds.

• Claimant also emptied trash and laundry bags, weighing up to 20 pounds.

On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public—not sure what that might mean. 

Claimant next described the following events leading to her fall:

Well, I was walking out and it looked to me like the concrete on the sidewalk met even with the blacktop but it didn’t, and it was about an inch and-a-half to two inches, and I stepped down normal like I was just walking and it made me trip and I stumbled. And when I fell, I hit the lip of concrete that is about 2, 2 and-a-half feet away from there. I landed on my knee.

Additionally, at the time of her fall, claimant testified it was still dark outside, and the temperature was at or near freezing. She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker.

Claimant next identified a photograph which showed the sidewalk, curb and slanted blacktop area where claimant fell. Claimant testified that, as she stepped off the curb with her left foot, her foot did not “land like it was supposed to,” causing her to trip, stumble and fall. Claimant further testified that the darkness made the sidewalk and the blacktop appear even, or “level.” 

Claimant suffered a comminuted fracture along the inferior aspect of the patella or knee cap. This is a serious injury.

Claimant underwent corrective surgery to her right knee and she later returned to work with restrictions. Claimant testified she began experiencing difficulty performing her work-related duties, which required prolonged periods of standing, lifting trays and pushing heavy carts. Claimant accepted an alternate position with Memorial that paid approximately $2.17 less per hour but involved lighter lifting and preparing linen packs. Claimant further testified regarding the lingering issues resulting from her knee injury. Claimant used a cane while walking to and from her work building, because the path to her particular building requires her to traverse a hill. Additionally, her knee was generally stiff and occasionally popped, which temporarily relieved the stiffness.

On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects. 

The arbitrator found claimant sustained an accidental injury. In rendering his decision, the arbitrator relied on precedent which the arbitrator believed involved a similar fact pattern. The arbitrator found that claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The arbitrator concluded claimant’s risk of tripping presented a neutral risk, which was somehow greater than that encountered by the general public. Accordingly, the arbitrator awarded claimant TTD, medical bills and PPD.

The claim was appealed to the Commission panel. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated: 

[C]ommon sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidences defectiveness; where demonstrating height differences between the curb and the area it borders does not. 

Again, the Commission determined that, unlike the Litchfield precedent cited the photographs, admitted into evidence by both parties (depicting the parking lot, sidewalk, asphalted area and purported spot of claimant’s fall), “show that the premises were neither defective nor hazardous.” In particular, the Commission found that “the height differential (diminishing towards the access ramp at the end of the sidewalk) between the curb and the blacktop was by design (emphasis added by me) and not a defect.” The Commission, instead, noted claimant’s case was factually similar to the circumstances in Caterpillar Tractor Co. v. Industrial Comm’n.

Claimant sought judicial review of the Commission’s decision in the circuit court. The circuit court judge affirmed denial. Claimant appealed to the IL Appellate Court, WC Division.
 

The Appellate Court confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement. 

The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”

The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence adduced at the arbitration hearing. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence. 

In short, despite the confusion caused by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ.

Please note the employer did what I feel was an excellent job investigating and photographing the area where the injury occurred. The defense team at KCB&A has a presentation to help your company improve their incident/event investigation to either document compensability or provide you the tools to fight a questionable claim—if you are interested, send a reply.

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