Illinois Workers Compensation

2008 Annual Report Illinois Workers Compensation Commission

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 06 Jul 2009 17:00:00 +0000

7-06-09

On June 30, 2009, the Commission released its Annual Report of Operations for 2008. Highlights indicate that total claims of 57,515 were up slightly 1.5% from previous year totals of 56,685 including both filed claims and pro se settlements. Total claims were down approximately 8% from FY2004.

The Commission operates the state court system for workers' compensation cases. In Fiscal Year 2008, the Commission's operating expenditures were $18.6 million. The Commission's end of year headcount was 162 employees, plus the chairman, nine commissioners, and six Self-Insurance employees who are counted separately, for a total of 178 people. Illinois provides 33 Arbitrators statewide for hearings, settlement approvals and pretrial in approximately 30 hearing locations throughout the state.

The Insurance Compliance unit collected $1.8 million in fines in FY2008 from 66 uninsured employers with 900 workers that were found to be operating without workers’ compensation insurance. If the Commission finds an employer knowingly and willfully failed to obtain insurance coverage, they can be fined up to $500 for every day of noncompliance, with a minimum fine of $10,000. Corporate officers may be held personally liable if the company fails to pay the fine. Under the new compliance laws which took effect July 20, 2005, an employer may also face criminal charges and/or a work-stop order for failing to obtain workers' compensation insurance coverage.

Each year roughly 250,000 work accidents occur in Illinois but only claims involving 3 days or more lost time from work are reportable to the Commission. Approximately 80,000 injuries are reported by employers each year involving 3 days or more lost time. Out of all reportable injuries, approximately 60,000 formal new claims are filed each year by either a formal Application for Benefits or as an original settlement.

In an original settlement, the worker generally does not have an attorney 95% of the time and settles direct with the employer or the insurance carrier. In the year 2008, the annual report reflects original or “pro se" settlements were filed in 9,322 cases representing 16% of all claims. Overall, an injured worker hired an attorney 84% of the time with a formal filed Application for Benefits.

Not surprisingly, Chicago and the collar counties with hub cities within an hour or so from Chicago account for approximately 60% of all Illinois work injury claims. Also not surprisingly, back and neck claims accounted for the largest sector of reported injuries totaling 20% of all injuries in 2008.

Thanks to the addition of a third panel of Commissioners deciding cases at the Review level, in 2008 the formal written decisions from the Commission on appeal from an Arbitration Decision increased by 13% from 2007. A total of 1,195 formal Review Decisions were entered in FY2008 representing 2% of all claim closures. Dismissals accounted for an alarming 9% of cases disposed of while settlements represented 86% of all case closures.

Interestingly, when an injured worker filed an appeal to the Review level before the Commissioners, benefits were increased only 15% of the time. In appeals by the worker, benefits were actually reversed or decreased in 13% of the cases. The great majority of appeals by the worker resulted in no change of the Arbitration Decision in 72% of decisions in appeals filed by the employee.

In employer appeals to the Review stage, benefits were affirmed almost 66% of the time. However, the employer was successful in obtaining a reduction or a decrease in benefits awarded from the Arbitration Decision in 21% of the appeals filed by an employer. Outright reversals were obtained in only 6% of the Review Decisions filed and benefits were actually increased in 6% of the decisions appealed from.

The average time that a case takes from filing an Application for Benefits through the final formal Decision on Review is approximately 4.2 years. That number is deceptively high because in most cases the attorneys and arbitrators are forced to wait until medical care has concluded before an assessment of the permanent nature of the injury can be made or while waiting on final medical restrictions and assessing a return to work status.

The actual appeal times on Review decreased during 2008 to 16 months or 1.33 years from the date of the Arbitration Decision. This represents a significant improvement in delay times on Review. In 19(b) Emergency Petitions for Benefits, the wait time for a Review Decision was under one year at 11 months.

Most litigated cases at the Illinois Commission are settled by and between the attorneys. While total claims disposed of in 2008 totaled 59,533 between settlements, decisions and dismissals, actual formal Arbitration Decisions were issued in only 3,594 cases representing a ratio of 6% of total claim dispositions.

In comparison, the average time it takes for settlement from date of application for benefits until the date of settlement approval was 1.9 years.

The take away message for most may be that the Commission works best in the vast majority of claims by resolving disputes and contested cases through compromise settlement. Parties may be best served by representation with an experienced Illinois workers compensation attorney to arrive at an early compromise settlement rather than face the uncertainties and delays of trial and appeal.

It should be noted that Arbitrators in Illinois perform a significant crucial key function in supplying sound pretrial recommendations to assist attorneys in resolving disputed areas of disagreement in contested cases.

Formal Decisions of the Arbitrator were appealed in only 48% of cases that went to trial and decision so the informal pretrial recommendations by the Arbitrator weigh very strongly with the parties. After all, it's not nice to ignore the pretrial recommendations of the person most crucial to deciding the disputed issues of the case.

Contact an Illinois workers compensation attorney for assistance at (312) 541-0049 or email our office at info@Workcomp-Chicago.com.

Chicago Workers Compensation Attorney -- 7-06-09

IL Workers Comp Medical Fee Schedule Changes

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 05 Jul 2009 13:00:00 +0000

7-05-09

The Illinois Workers Compensation Medical Fee Schedule adopted new Medicare Medical Severity codes for hospital inpatient services. The new MS-DRG codes are now part of the Illinois Medical Fee Schedule as of June 30,2009.

Medicare changed its inpatient codes from the DRG (Diagnosis Related Group) to the MS-DRG (Medical Severity-Diagnosis Related Group) to account for degrees of severity in medical treatment and the Illinois Workers Compensation Commission has now followed suit with modifications to adopt the changes. This will only affect workers compensation treatment for hospital inpatient services.

To allow transition time for the industry to adopt the new payment protocols, the Workers’ Compensation Medical Fee Advisory Board and the Commission have asked providers and payers to follow a July 31, 2009 effective date.

For all prior dates of treatment, the inpatient fee schedule uses the older DRG codes. Providers and payers should work to translate these bills using the CMS crosswalk, Grouper Version 24.0.

No separate right currently exists for medical providers to assert a claim for payment of related medical bills at the Illinois Workers Compensation Commission. However, the law does provide for interest payments and penalties on non payment of injury related medical invoices.

To enforce payment of medical bills for workers compensation, providers will require the assistance of an Illinois workers compensation attorney to file an application on behalf of the patient. For more information or assistance, contact our office.

Chicago Workers Compensation Attorney -- 7-05-09

Good Samaritan: Hip Check to Vending Machine Awarded

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Tue, 23 Jun 2009 03:00:00 +0000

6-22-09

In an unusual claim for benefits, an employee fractured his hip when he hip checked a vending machine to help a female coworker get a bag of potato chips. The vending machine hip check case even received some national attention. The worker hit the vending machine hard enough that he suffered an impacted, displaced fracture of his right hip and required immediate surgery.

Over the objections of his employer, compensation was awarded for both disability and medical benefits. Hip checking the vending machine was not part of his regular job duties but the Commission allowed compensation under the “personal comfort” doctrine. To most people, this might seem a bit unusual but the law provides that personal acts like going to the bathroom or going to the break room are generally considered to be “in the course of" employment and are considered a normal part of expected "personal comfort" necessary for regular employment.

The Appellate Court in Circuit City v. Illinois Workers Compensation Commission (2nd Dist, 5/21/09) viewed the hip checking case more like a “ Good Samaritan” case, in that he was coming to the aid of a female coworker. They agreed that it was compensable so long as the actions were both reasonable and foreseeable.

Past “Good Samaritan” cases have awarded compensation for a traveling employee killed while helping a stranded motorist while driving on a service call (Ace Pest Control, 1965) and in the case of a Chicago harbor master who jumped in to save someone from drowning in Lake Michigan (Metropolitan Water Dist., 1995). The test for compensation depends on whether the actions are both foreseeable and reasonable.

Thomas A. Robinson, J.D., of Larson's Worker's Compensation Law(LexisNexis) wrote a short article for the Workers’ Comp Kit Blog describing the vending machine incident as a “Chivalrous Act” in coming to the aid of the female coworker. The case is also posted on Illinois Top Cases on the Lexis Larson's WC Law Center.

Larson’s Workers’ Compensation Law, § 21.01 points out that “personal comfort” acts can be considered part of regular employment but they also note that the acts cannot be unusual or unreasonable.

This case could have just as easily been denied by the Illinois Workers Compensation Commission as an unreasonable act. In fact, the claim probably would have been denied if the injured worker was trying to retrieve his own bag of potato chips rather than assisting a female coworker. The "Chivalrous Act" of helping a female coworker brought it in line with prior awards under past "Good Samaritan" cases.

To review Illinois workers compensation benefits, contact an Illinois workers compensation attorney.

Chicago Workers Compensation Attorney -- 6-22-09

Settlements: Medicare Set Aside Future Drug Costs and Uniform Pricing

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sat, 20 Jun 2009 13:00:00 +0000

6-20-09

Employers may soon see a spike in future drug costs for settlements going through the MSA approval process after June 1, 2009. Medicare will begin independent pricing of future drug costs in Workers Compensation Medicare Set Aside proposals as of June 1, 2009 using Average Wholesale Price (AWP) for drugs based on prices listed in the RED BOOK (r) Drug References.

CMS will no longer recognize other pricing methods using workers compensation contractual discounts for prescription drugs in Medicare Set Aside proposals. What does this mean?? Carriers and employers will be required to fund future drug costs based on the average wholesale price of drugs in use before any contractual discounts, before any WC state fee schedule discounts or before any future shift from brand names to generics. MSA submissions can no longer take advantage of pricing in the "Doughnut hole" into MSA proposals by excluding funds for Medicare Part D prescription deductibles.

The new pricing will assume a lifetime supply of drugs in use at the time of the MSA proposal. CMS will also look to the past 2 years of drugs used and to the expectations for future drug use based on the treating doctor's recommendations.

This recent change adopting uniform pricing is designed to eliminate some of the past abuses in under pricing MSA drug proposals such as "Doughnut hole" pricing and utilization review assumptions of tapering use of narcotics which were not supported by the treating physician's records.

The upshot for most employers is that future drug allowances in a MSA proposals may cost more than if those medical rights had remained open under workers compensation. Carriers may be better off leaving the prescription drug rights open under a settlement and paying for the future drugs using a qualified assignment and purchasing an annuity. That option would allow the carrier or employer to continue to use discounted pricing or use applicable state fee schedules and also let an employer be the residual beneficiary on the annuity policy (should the worker die early) and stand to receive a return of some portion of the money rather than fully funding lifetime drugs at average wholesale prices to satisfy Medicare MSA pricing requirements.

MEDVAL compared the increase in costs from their normal prescription pricing methods to the new average wholesale pricing (AWP) and came up with an astonishing $1.4MM difference on the first 17 cases reviewed. If that jump in pricing is reflective of expected average MSA cost increases under the new AWP pricing requirements, it would truly be a bitter pill to swallow for most employers and most workers comp carriers.

Contact our Chicago workers comp attorneys for questions on Illinois workers compensation settlements and MSA requirements.

Chicago workers compensation Attorney -- 6-20-09

Failure to Quit Smoking Defense: Disability Benefits and 3rd Surgery Awarded

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 14 Jun 2009 13:00:00 +0000

6-14-09

Smoking alert. In a recent case, a smoker was denied disability benefits and denied a new surgery by his employer because he could not quit smoking following his low back surgery. While the current social and political consensus is that tobacco smoking is evil, bad and harmful, Illinois has yet to make it a criminal activity sufficient to deny workers' compensation benefits.

In Global Products (1st Dist. June 9, 2009) the IME defense doctor blamed a failed back fusion on smoking. Based upon the IME opinion, the employer denied temporary disability benefits and denied a proposed 3rd lumbar surgery. The arbitrator and the Illinois Workers Compensation Commission disagreed and awarded a full 6 years of temporary disability benefits, a third lumbar fusion surgery and awarded penalties and attorneys fees for the unreasonable denial of benefits.

Smoking or obesity are not yet in and of themselves a legitimate reason for an employer to deny surgery or to deny disability benefits in Illinois. That did not stop the employer in Global from arguing that smoking was a form of "injurious practices" under Section 19(d) of the Illinois Workers Compensation Act. The employer argued that continued smoking was a deliberate intentional act undertaken to retard the medical recovery.

The doctors agreed that there is an increased risk of fusion failure in smokers. Smokers are well advised to quit smoking to increase their healing, decrease their recovery time and increase their chances for a successful back fusion. It is clear that the doctors did advise the injured worker to quit smoking. The law is also clear that "If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce or suspend the compensation. 820 ILCS 305/19(d)

There was no evidence that the worker had deliberately attempted to impair his recovery. In fact, the injured worker did make an unsuccessful attempt to quit smoking. Anyone who has tried to quit smoking knows that it is not an easy proposition.

Our Appellate Court found that the employer could "reasonably rely" upon the IME opinion blaming a failure to quit smoking in cutting off benefits and so they denied the award of penalties and attorneys fees.

What is our court saying ?? That the law did not support the employer's denial of benefits based upon a failure to quit smoking but that the "smoker defense" was reasonable enough to avoid penalties and attorneys fees. Was the court creating a new defense sufficient to tie up benefits without the imposition of penalties and fees for improperly delayed benefits?? Is this the message or are they really emphasizing that reliance on an employer's IME opinion will avoid penalties?? Are obesity and diabetes the next "reasonable defenses" sufficient to deny benefits since they are also conditions allegedly within the worker's control that impair and prolong recovery as long as the IME doctor blames these two known risk factors for a delay in recovery?? In our view, probably not. Obesity and diabetes are much harder to control.

See: Larson's Workers' Compensation Law § 10.10 Refusal of Reasonable Treatment: an unreasonable refusal to follow medical instructions will usually lead to a loss of disability benefits attributable to the refusal but, when the recommended treatment involves things like weight loss reduction .... the courts have generally been far less stern, ... (the courts) are reluctant to stigmatize human failures as a ''willful refusal.'' Here, as in the case of (refusing surgery), the test of reasonableness of the worker's refusal applies.

Although an employer's reliance upon a medical opinion will generally avoid penalties, here, that medical opinion did not support an existing defense to the payment of compensation under Illinois law. The Court held that failure to quit smoking does not constitute an intervening act breaking the chain of medical causation nor does it constitute a willful, intentional and deliberate interference with recovery.

I agree with the dissent that denying workers compensation disability benefits without an existing legal basis is unreasonable and it should generally lead to an award of penalties against the employer.

To review workers compensation benefits and existing defenses contact our Chicago workers compensation attorneys.

Chicago Workers Compensation Attorney -- 6-14-09

National Study of Illinois Workers Compensation Proposed

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 01 Jun 2009 11:00:00 +0000

6-1-09

H.R. 635, the “National Commission on State Workers’ Compensation Laws Act of 2009” (Jan. 22,2009) would create a federal commission to study the state-based workers’ compensation insurance system and make recommendations for improvements. Under the proposal, the Commission would have the authority to hold hearings, issue subpoenas, take testimony, and receive evidence. It would be required to make recommendations for improvements to the workers compensation systems within 18 months. You can expect the study to recommend adoption of greater nationalized standards.

I would expect that any suggestion for a nationalized system of medical payments would be modeled after Medicare and severely reduce current medical payments to our doctors and hospitals for workers compensation injuries.

The National Association of Professional Insurance Agents recently came out to oppose to the proposed study as unjustified and simply a waste of taxpayers’ money.

To read further details, see "PIA Opposes Federal Commission to Study State Workers Compensation Laws on LexisNexis. LexisNexis provides the Larson's Workers Compensation Law Center for valuable resources for attorneys and the workers compensation industry.

Chicago Workers Compensation Attorney -- 6-01-09

Medicare Set Aside Approval Proposed Changes

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 01 Jun 2009 11:00:00 +0000

6-01-09

Reform legislation has been introduced to streamline the Medicare Set Aside review process. Representative John Tanner (Tennessee) re-introduced legislation H.R. 2641 ( May 21, 2009) to amend section 1862 of the Social Security Act. The bill proposes to establish an exemption for low dollar workers compensation settlements and an exemption where there is no expectation of future medical care related to the work injury.

The bill establishes (1) a safe harbor for low value settlements of $25,000 or less, (2) an exemption where there is no expectation of future medical care and (3) an exemption where the injured worker is unlikely to become eligible for Medicare within 30 months after the date of the settlement.

Importantly, the proposed bill provides a definition of "compromise settlements" which are now already exempt from the need for Medicare set aside arrangements under the federal regulations but currently the word "compromise" is not adequately defined to provide a real exemption. Under the new bill, "compromise settlements" would mean a settlement where the workers' compensation claim is denied or contested, in whole or in part and the settlement does not provide for full payment of benefits.

Where a set aside agreement is required, the bill mandates set-aside account dollars shall be based on the particular state workers' compensation fee schedule in effect as of the date of the settlement.

Importantly, under the proposed bill, Medicare would allow for a reduction of the Set Aside Account by the costs and expenses incurred in establishing, administering, or securing approval for the Medicare set-aside. That includes attorneys fees, third-party vendors, and any appointed trust account administrators. The current system does not allow for reduction of Medicare set aside accounts by costs incurred for attorneys fees or costs for approval and administration.

In an effort to achieve an equitable assessment for future medical expense accounts, the bill also proposes a proportional % adjustment for "compromise" settlement agreements. In general, the proposal allows the parties to reduce the set aside account amount in direct proportion to the full value of the claim if there were no disputes involved. The percentage reduction for the set aside account would be equal to the % of benefits denied or contested out of the settlement as compared to full value.

This section will cover all those settlement agreements that are currently partially disputed and represent a real reducuction in workers compensation settlement value based on the disputes in the case. This proposal actually attempts to correct the current process whereby parties are forced to fund full future medical amounts even though the benefits in the claim are disputed and even though the injured worker is only receiving half or less of full value because of the disputed issues in the case.

Time wise, the bill proposes a 60 day period for the government to approve or disapprove the set aside proposal. Under the current system, we have had MSA approval take from 6 months to as long as a year and a half after reaching a settlement agreement in the workers compensation claim. Meanwhile, the injured worker continues to incur medical bills for medical care and prescription expenses but they do not have access to the Medicare set aside funds. While the insurance carrier is waiting for CMS approval on the MSA, most carriers will not pay the medical bills waiting to see if Medicare approves the settlement.

The proposal is also designed to set out standards for the review process by CMS contractors and attempts to set review standards for amounts to be reserved in Medicare set aside accounts.

The current status of the bill as of this writing, HR 2641 has been referred to the House Committee on Ways and Means and to the Committee on Energy and Commerce.

chicago workers compensation attorney -- 6-01-09

More than Totally and Permanently Disabled from Work Injury in Illinois

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 24 May 2009 17:00:00 +0000

5-24-09

Is that possible to receive more than lifetime total disability benefits in Illinois from a single accident? Answer: Yes -- it is possible, but it won’t happen very often.

In Beelman Trucking, (May 21, 2009, Ill. Supreme Ct.) an injured worker received lifetime total disability benefits for the complete paralysis of both legs and he also received an award for the amputation or loss of use of both arms. In Beelman, the employer argued that a worker cannot be more than totally and permanently disabled. The employer argued that the Illinois Workers Compensation Act puts a cap on the benefits available at lifetime permanent total disability benefits. (A lifetime award would normally be at 2/3 of his regular pay for life) The employer argued that a worker cannot possibly be more than totally and permanently disabled in a single work accident.

14 years after a tragic truck accident, a truck driver, Jack Carson, was allowed by the Illinois Supreme Court to keep an award for the loss of both his arms as well as a lifetime pension for paralysis of both his legs.

There is no dispute that an injured worker in Illinois can receive lifetime disability benefits for the loss of 2 arms, 2 hands, 2 legs, 2 feet, 2 eyes or any combination thereof under Section 18(e)(18). The question was whether Carson could keep an additional award of 235 weeks for paralysis of his left arm and an extra 300 weeks compensation for amputation of his right arm on top of the lifetime benefits already awarded.

Illinois essentially recognizes 3 types of permanent and total disability pensions. Lifetime disability benefits are available for those (1) that are “obviously unemployable” because they are wholly and permanently incapable of work, or (2) for someone capable of limited work but they are damaged to the point that there is no stable labor market anymore for a person of like age, training and physical limitations known as “odd-lot” permanent total disability pension and (3) in the case of someone eligible by statute for total disability pension for the amputation or loss of use of 2 arms, 2 hands, 2 legs, 2 feet, 2 eyes or any combination thereof known as a “statutory” permanent total disability.

It is contemplated that someone with a “statutory” total disability pension may eventually even return to work earning some wages but the disability pension is awarded by law for the severe nature of the injuries.

Under the first two disability pensions, a worker cannot receive money by adding up the % of each body part on top of the total disability pension. Under the third type of disability pension, the “statutory” total disability pension involving amputations, it is possible to obtain additional awards for losses on top of the total disability pension.

As a good example, in Freeman United Coal (1984) 99 ILL.2d 487, a coal miner on a “statutory” total disability pension was allowed to receive an additional award for other injuries he received following a second work accident. The difference in Beelman now is that the Supreme Court recognizes an award for injuries on top of the “statutory” disability pension arising out of the same accident rather than requiring a new, second and separate accident at work.

Chicago Workers Compensation Attorney – http://wc-chicago.com -- 5-24-09

Temporary Disability Benefits Following “Economic Layoff"

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sat, 23 May 2009 19:00:00 +0000

5-23-09

Will an “economic layoff” be a solid defense against payment of temporary disability benefits where a carpenter worked for over 2 years following a shoulder injury ? The answer is no – that is, as long as the worker is still under medical care and is still “temporarily” disabled from his regular employment.

In Residential Carpentry (May 8, 2009, 3rd Dist.) the Appellate Court confirmed an award of penalties for nonpayment of TTD following a layoff and for the unreasonable refusal of the employer to authorize payment of ½ of a shoulder surgery.

Tibbitts was a union carpenter injured while lifting a 100 lb. staircase for installation in October of 2003. Following conservative care, his doctors recommended rotator cuff repair, decompression and possible clavicle resection. The employer obtained an IME exam by their doctor and agreed that the rotator cuff tear was related but not the degenerative arthritic spurs in his shoulder which necessitated the decompression and clavicle resection. So, the employer only authorized ½ of a shoulder surgery.

Since Tibbitts couldn’t get the other ½ of his shoulder surgery approved, he continued working. In June of 2004, Tibbitts reinjured the same shoulder again lifting stairs for installation. Tibbitts continued his work for the employer as a carpenter but under light duty restrictions for 17 months from June of 2004 until his layoff in December of 2005. His employer ultimately “laid him off” and said they no longer had any work for him because they were “not busy”. Although Tibbits sought work with 15 or 20 other contractors following the layoff, he could not find work within his restrictions. The company denied his disability benefits because they argued he was out of work due to economic reasons rather than due to medical reasons.

Our Appellate Court held that despite his lengthy and continued light duty work, the Commission was not prevented from finding Tibbits temporarily disabled. The mere fact that a worker is capable of some light duty work does not prevent an award of TTD. A worker is entitled to “temporary” disability benefits up until the time he is recovered to the maximum extent possible given his injury. That term is commonly called maximum medical improvement or MMI. Once an injury stabilizes to the maximum extent possible, an employee is no longer entitled to “temporary” disability. Here, Tibbitts was still under the doctor’s care and still waiting for his surgery so the court confirmed the award of benefits with attorneys’ fees and penalties.

Typically, a good faith challenge to liability for benefits will not subject an employer to penalties under the Illinois Workers Compensation Act but, the employer bears the burden of showing that the denial of benefits was reasonable. The law clearly provides that an aggravation of preexisting condition is compensable under the Act. Here, the court found it unreasonable to deny ½ the surgery where it was clearly contrary to how it would normally be treated. To try to have the doctors perform only ½ a surgery for a rotator cuff tear but not take care of the impingement or the degenerative arthritic spurring while they were in there was found clearly not medically reasonable.

Chicago Workers Compensation Attorney ---- http://WC-Chicago.com/ -- 5-23-09

New Illinois Workers Comp Medical Fee Schedule for Outpatient Services

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 02 Feb 2009 16:00:00 +0000

02-02-09

New Rules and a new Medical Fee Schedule apply for maximum fees in hospital outpatient and ambulatory surgical centers under Illinois workers' compensation effective Feb. 1, 2009. (See: Illinois Workers Compensation Medical Fee Schedule Instructions and Guidelines for Treatment on or after Feb. 1, 2009)

The Illinois Joint Committee on Administrative Rules (JCAR) approved changes to the Medical Fee Schedule to add maximum payment amounts for Hospital Outpatient and Ambulatory Surgery. The legislative committee adopted the proposed changes on January 13, 2009. The new Out-patient rates are effective February 1, 2009 according to Ms. Susan Piha in a formal Commission announcement.

In-patient charges and Physician reimbursement rates were already in place in the Medical Fee Schedule for all inpatient, trauma and doctor's professional fees for medical care effective February 1, 2006. The new inpatient and professional rates for 2009 have been posted to the medical fee schedule website. The new 2009 fee schedule rates increased by 5.37%, which reflect the annual cost of living adjustments in the Consumer Price Index (U) for all treatment rendered as of January 1, 2009. Where there is no fee schedule amount listed or available for a procedure, the default rate is 76% of the charged amount.

The new Outpatient and Ambulatory Surgery rates were 2 years in the making. Historical charges were analyzed from 2002 to 2004 broken down by the 3 number Geozip (1st three numbers of a zip code) , i.e., 606—for Chicago. Compromises on the rules and fee schedule implementation were reached in long running deliberations between labor, industry and medical representatives of the Medical Fee Advisory Board. Their hard work and endless hours of analyzing data by the Commission staff have finally come to fruition. Illinois now has one of the most comprehensive workers' compensation medical fee schedules in the United States.

The new Outpatient Medical Fee Schedule sets forth the maximum limits for payment for of 1) ambulatory surgical centers 2) hospital outpatient surgery, radiology, pathology, laboratory, physical medicine and rehabilitation services and 3) new rates for free standing specialized rehabilitation hospitals.

Workers' compensation payment rates are based on the medical procedure code, the date of service and the location (or zip code) where the medical care is rendered.

The maximum payment amounts under the fee schedule are set out as 1) the lesser of the Fee Schedule amount or the actual charge or 2) a contractual rate amount governed by a "negotiated" medical provider contract. An existing contract will control over amounts set forth in the new fee schedule. Special 65% of amount charged rules still apply for any add-ons or pass through charges for hardware devices, instrumentation or medical devices.

In progress, Illinois will be converting to the new MS-DRGs scheduled to be adopted no later than June 30,2009 applying the new Medicare severity codes.

Chicago Workers Comp Attorney – http://wc-chicago.com/ 02-02-09

Social Security Disability and Illinois Workers Comp Settlements

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 01 Feb 2009 15:49:00 +0000

2-01-09

Social Security disability and workers comp combined benefits will pay up to 80% of the former monthly income subject to a maximum monthly payment. The general rule is that the combined benefits between Social Security and Workers Compensation cannot exceed 80% of a person’s former monthly income.

Disabled workers can try to maximize the combination of workers compensation benefits and Social Security Disability payments. Workers facing permanent job loss due to injury or total disability should consult a Chicago workers compensation attorney for advice as early as possible.

The workers’ compensation credit against Social Security benefit payments, or the “workers compensation offset” as it is known, is any amount over the 80% combined benefit maximum. Social Security disability benefits are reduced dollar for dollar if the total combined monthly benefits are over 80% of former “average earnings.” The 80% rule is designed to prevent people from making more money staying home on disability than they would have earned by working. Social Security takes a credit for workers compensation payments and sets a maximum cap on the combined benefits.

Social Security defines the former average earnings as a person’s highest monthly earnings either (1) from an average from the highest five years in a row after 1950 or (2) based on a single calendar year of the highest earnings.

This 80% of former monthly income rule effectively caps the maximum amount available from combining both WC and SSD benefits. Social Security disability benefits also have a maximum payment no matter how high the 80% former income figure may be. SSD does not attempt to make sure that an injured worker actually reaches the full 80% of former income level for medium to high wage earners. The low maximum SSD disability payments will usually result in an income loss for disabled wage earners if they are not adequately compensated in workers compensation.

The SSD portion of payments under the 80% combined benefits rule usually changes from when a worker is receiving WC weekly temporary disability payments compared to a different payment amount after the WC case is settled. Workers must ask Social Security for a recalculation of their benefits after the WC case is settled. The SSD monthly benefit can often increase after a settlement.

Stated simply, the monthly SSD benefit and the WC benefit cannot be greater than 80% of the worker’s former income. In practice, if the workers compensation settlement is spread out over the lifetime of the injured worker, it will generally result in a smaller workers' compensation offset. The terms of a WC settlement are extremely important in order to maximize the combined monthly benefits.

Illinois law allows for a single lump sum payment of workers compensation case which can reduce the effects of the Social Security offset. The law allows for a proration or spread of the settlement amount out over the expected lifetime of the worker. Failure to use the proper settlement terms however can result in a complete suspension or termination of SSD benefits up to the entire amount of the settlement.

Chicago Workers Compensation Attorney ----http://wc-chicago.com/ -- 2-01-09

Workers’ Comp Lien and Employer’s Uninsured Motorist Coverage

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 26 Jan 2009 13:42:00 +0000

1-26-09

The Illinois Supreme Court recently decided that a workers’ comp lien does not apply to a recovery on an employer’s uninsured motorist policy under the plain meaning of Illinois workers’ compensation lien statute since there was no recovery from a 3rd party. Taylor v. Pekin Ins. Co., 2008 WL 4943700, --- Ill.2d--- (Nov. 2008).

The Illinois workers’ compensation lien statute clearly creates an employer’s right of reimbursement for any workers compensation benefits paid from any 3rd party recovery. By statute, the workers’ compensation lien applies to any award, judgment, or fund received by an injured employee from a 3rd party. 820 ILCS 305/5(b).

It was decided earlier that a workers comp lien does not attach to an employee’s uninsured motorist coverage (Terry v. State Farm Insurance) (2d Dist.1997) as the uninsured motorist recovery is a contract recovery by the claimant against his or her own insurer and not a recovery against a responsible 3rd party.

By way of background in this case, Taylor filed a workers’ compensation claim for a car accident with an uninsured driver. Plaintiff received $162,588.33 in workers’ compensation benefits. Plaintiff then filed a claim for injuries under the employer’s uninsured motorist policy for the employer’s auto policy issued by Pekin Insurance.

At arbitration on the uninsured motorist claim, Taylor was awarded $250,000. The uninsured motorist policy contained a setoff clause for all sums paid under workers’ compensation so Pekin delivered a check to the plaintiff for $87,411.67 representing the $250,000 arbitration award less the setoff for workers comp benefits paid of $162,588.33.

Taylor filed suit claiming he should get 25% attorney’s fees on the $162,588,33 setoff. The Supreme Court said that Taylor’s claim for attorney’s fees misses the point.

The Supreme Court said the plain language of 5(b) clearly states the workers’ comp lien applies where proceedings are instituted against a person, other than the employer, who is liable for damages. Here the claim was not against a 3rd party so the workers comp lien doesn’t apply. If a workers’ comp lien had applied, the employer would have paid 25% attorney’s fees on any lien reimbursement in order to prevent an unjust enrichment to the employer. (Reno v. Maryland Casualty) (1962). Here, there was no workers’ comp lien to apply and there was no reimbursement of lien but rather a setoff in the auto policy.

The Court said that if Taylor had recovered $250,000 from an actual insured 3rd party, he would have received the same net recovery of $87,411.67 after deducting out the employer’s workers’ compensation lien reimbursement. Plaintiff was left in no better or no worse shape than he would have been in if he had recovered from an insured 3rd party.

Workers’ compensation lien questions should be addressed to Illinois workers’ compensation attorneys knowledgeable in workers’ compensation lien reimbursement.

Chicago Workers Compensation Attorney -- http://wc-chicago.com 1-26-09

Work Comp Chicago Workers Compensation Attorneys Chicago

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Thu, 01 Jan 2009 14:00:00 +0000

01-1-09

Illinois workers compensation lawyers with advanced training and trial experience in Illinois Workers Compensation injury claims and related work injury litigation. Our experience covers all types of work injury claims, medical conditions and related Illinois injury litigation in Chicago and suburban areas since 1984.

Our workers compensation lawyers concentrate in Illinois work injury claims involving construction, manufacturing, health care and transportation.

We have over 20 years of experience in Illinois injury claims covering a broad range of medical conditions including complex fractures, arthroscopic knee and shoulder repairs and advanced experience with back injury claims, disc herniations and spinal fusions.

Aggressive representation in all cases involving loss of occupation, permanent wage reductions or cases of permanent total disability. Our Chicago workers compensation lawyers work with each client to prepare for the expected and anticipate the unexpected. We work to maintain a significant competitive edge in Illinois workers compensation claims and work related injury litigation.

Our attorneys provide instruction, education and preparation available for options in Illinois work injury cases. We provide dedicated, aggressive representation in both Chicago and the surrounding area cities:

Chicago, Waukegan, Barrington, Mundelein, Libertyville, McHenry, Woodstock, Geneva, St. Charles, Elgin, Wheaton, Aurora, Downers Grove, Naperville, Romeoville, Joliet and Kankakee.

Serving greater Chicago and outlying surrounding areas in N.E. Illinois for over 20 years.

For assistance, please contact (312) 541-0049 for conference, meeting, claim review or consultation.

Chicago Workers Compensation Attorney -- http://wc-chicago.com 1-1-09

Undocumented Alien Awarded Permanent Total Disability Benefits

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 28 Dec 2008 19:00:00 +0000

12-28-08

Illinois recently joined a majority of states in formally recognizing an illegal alien’s right to receive workers compensation benefits. As noted by our Illinois Supreme Court as far back as 1916, the Illinois Workers Compensation Act includes “aliens” as covered employees. Chicago and much of our country were built by immigrants so its of little surprise that they would be covered as employees under our workers compensation statute.

The Illinois Workers Compensation Act specifically defines the term “Employee” to include “[e]very person in the service of another under any contract of hire... including aliens.” 820 ILCS 305/1(b)(2) (West 2002). The Act does not further define “aliens” to make any distinction between a legal registered alien and an illegal undocumented alien.

Larson on Workers' Compensation Law §66.03: Employment of Illegal Aliens notes that employers in a few other states have attempted to challenge the rights of illegal aliens to workers compensation benefits based on the misrepresentations of illegal aliens in obtaining employment to begin with, thereby voiding the employment relationship. However, the great majority of states, including Illinois, allow for workers compensation benefits for illegal aliens with a few exceptions.

The Federal Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for any employer to knowingly hire an illegal alien. Therefore, when dealing with a workers compensation claim, an injured illegal alien’s ability to return to work despite their illegal status or their ability to earn future wages after an injury appears to remain in question, purely speculative or the subject of vocational expert opinion testimony.

The rights of injured illegal alien workers to receive medical care, temporary disability benefits and permanent disability awards in Illinois are really not in question. The tougher questions involve an employers’ obligation to return an injured illegal alien to work within light duty restrictions or face continuing payments of temporary disability benefits during a light duty return to work release, rights to vocational rehabilitation, rights to maintenance benefits, entitlement to wage differential benefits or the duty of an injured worker to search for work in the face of an obvious inability to legally return to work.

In the case of Economy Packing, an injured 60 year old, Mexican female, illegal alien, was employed at Economy Packing manually deboning chickens. Following a slip and fall shoulder injury and subsequent surgery, she was unable to return to regular work due to her permanent 10 lb. lifting restrictions and no work over the shoulder restrictions. She had very little education, she couldn’t drive, she had no special skills and she spoke only Spanish.

Her attorney claimed an entitlement to “odd lot” permanent total disability benefits for life, claiming that there was no stable job market available in Illinois for a person of like age, education, skills and physical restrictions irrespective of her illegal alien status. Vocational rehabilitation experts were called in to testify but they strongly disagreed as to whether the worker could or could not return to work in any stable job market, but for her illegal immigration status.

In looking at the Illinois Workers Compensation Act, the Economy court looked first to the plain meaning of “aliens,” which would include not only foreign-born citizens that can be legally employed to work, but the word aliens would also include those illegal aliens that cannot be legally employed. If the legislature had intended any other meaning for aliens, it could have defined the term “aliens” or modified the meaning with specific language.

In Economy, the court concluded that all aliens, whether legal or illegal, engaged in the service of another, pursuant to a contract for hire, regardless of immigration status, are to be considered “employees” within the meaning of the Illinois Workers Compensation Act and that they are entitled to receive Illinois workers' compensation benefits. This is important because it appears to be the first official pronouncement.

It has been argued that denying illegal aliens the right to receive workers compensation benefits could create a permanent class of disposable workers. Denying illegal aliens benefits could actually provide a financial incentive for employers to employ more illegal aliens since they could then knowingly save associated workers compensation injury costs that would otherwise be payable for legal employees. Larson also notes the possibility that if injured illegal alien workers are not covered under workers compensation statutes, that employers would likely loose their exclusive remedy defenses and could then be sued in negligence for personal injuries stemming from an employer’s negligence. This is not an option that most employers would choose.

So if illegal aliens are entitled to workers compensation benefits in Illinois, what are the employee’s rights and the employer’s obligations for returning an injured worker to work or the rights of illegal workers to formal vocational rehabilitation benefits for a return to the workforce in the face of the illegal employment status ??

In the only case on point, the Illinois Workers Compensation Commission held that illegal aliens are entitled to medical and vocational rehabilitation benefits necessary to return them to work in any country where they could be legally employed but, that illegal aliens are not entitled to vocational job placement assistance because of the illegality of mandating employers to assist in obtaining subsequent illegal employment. Tamayo v. American Excelsior (1999) 99 IIC 521.

In Economy, our Appellate Court found that an undocumented alien can be entitled to permanent and total disability benefits, if she can prove that she cannot engage in employment in any well-known branch of the labor market specifically due to her injuries, without regard to her undocumented status. The burden then shifts to the employer to prove that, “but for” the legal inability to obtain employment, suitable work would have been “regularly and continuously” available to a person of like age, skills, education and physical restrictions.

The Appellate Court affirmed the Commission’s award of permanent total disability benefits not withstanding the injured workers’ illegal alien status. Economy Packing Co. v. Illinois Workers' Compensation Com'n, (Ill.App. 1 Dist., December 09, 2008) --- N.E.2d ----, 2008 WL 5205004.

The tough questions regarding an employers’ obligation to continue payments of temporary disability benefits during a light duty release to return to work or the duty of an injured worker to search for work in the face of an obvious inability to legally return to work remain to be answered. The employer may or may not be required to continue temporary disability payments during a light duty release to return to work where they have light duty available while it appears that wage differential cases will now turn on expert testimony by vocational and labor market experts.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 12-28-08

Carpenter Fired for Religious Graffiti Not Entitled to Disability Pay

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Thu, 13 Nov 2008 06:00:00 +0000

11-14-08

An Illinois construction worker was working light duty following a legitimate work injury when he was fired for writing religious graffiti on a store room shelf. In a case of first impression, the Appellate Court considered the entitlement of a worker to temporary disability pay or temporary partial disability pay where he was working under light duty restrictions but fired for an unrelated cause. Interstate Scaffolding v. Workers Compensation Commission (Oct. 20, 2008, 3rd Dist App.)

There the Arbitrator denied benefits after the termination. The Commission however, reversed and awarded benefits focusing in on the fact that the injury had not yet stabilized nor reached MMI, so they awarded the temporary disability benefits while the worker was still temporarily disabled from his regular job.

The Appellate Court looked to Professor Larson on Workers Compensation Law (see Larson's Worker's Compensation Law § 84.04D Physical Incapacity -- Employee's Misconduct, at 84-17 (2007).

Under prior Illinois law, the right to ongoing disability after leaving light duty employment centered on whether the departure from the employment was voluntary on the workers part or involuntary due to the medical disability.

In reviewing cases from other jurisdictions provided by Larson's, the Interstate Court noted that some jurisdictions deny compensation where the disability played no part in the discharge citing Palmer v. Alliance 917 So.2d 510, 514 (L.A. Ct. App.2005) and Calvert v. General Motors, 327 N.W.2d 542.546 (Mich. Ct. App. 1982) holding an employee discharged for "just cause" is not entitled to ongoing disability benefits.

Other jurisdictions were noted to uphold the right to collect benefits after a firing while on light duty only if the employee could prove that the inability to find other employment is related to the job injury disability itself, citing Cunningham v. Atlantic, 901 A.2d 956 (N.J. Super.Ct. App. Div. 2006) and Marsolek v. Hormel, 438 N.W.2d 922, 924 (Minn.1989) (that a justifiable discharge for misconduct suspends the rights to compensation unless the cause of the employee's inability to find other suitable employment is related to the work injury disability)

In Interstate, the Illinois Appellate Court said that there was no evidence that the employer terminated the worker merely to avoid paying disability benefits, but rather that the worker's own volitional conduct in defacing company property was the real cause for proper discharge and that he would have continued to have received benefits until he medically stabilized but for his own misconduct. Accordingly, temporary benefits after the termination were properly denied.

Contrast this decision with a recent Illinois Commission decision in Wleklinski v Kelly Services (08 IWCC 254, March 2008) where a temporary worker at RR Donnelly suffered a wrist sprain accident on 11/14/06 with immediate notice and immediate medical care. The employer terminated the worker for leaving her machine early and failing to punch out on the day of the accident. The employer refused to pay any temporary disability benefits claiming a valid termination and they failed to provide any suitable light duty work. The arbitrator awarded temporary disability benefits and a total of $7,616.07 in penalties and attorneys fees stating that merely severing the employment relationship was not sufficient to sever the employer's obligation to provide ongoing temporary total benefits for an undisputed accident.

In Sapp v Wal-Mart (06 IWCC 459 , May 2006) a 37 year old cashier had an uncontested low back injury lifting a fan into a shopping cart. She was subsequently terminated for absenteeism while on light duty. The arbitrator denied benefits after the termination but the Commission reversed and awarded temporary benefits. The Commission focused on the test for determining ongoing entitlement to disability benefits following the termination as whether the medical condition had reached Maximum Medical Improvement and not just whether the cashier was capable of working light duty. Accordingly, the Commission awarded temporary disability benefits following the termination.

As well, the Illinois Commission had previously decided Alicea v. Sysco (06 IWCC 596, July 2006), wherein a 42 year old working for Sysco Food Services injured his right shoulder in an undisputed accident and underwent surgery for a shoulder dislocation but the employer previously fired him for violation of a safety rule during the accident. The employer denied benefits entirely during a light duty release to return to work arguing that the violation of safety rule barred the right to temporary disability benefits altogether. The Arbitrator held and the Commission affirmed that the termination based upon the safety rule violation did not entirely remove the worker from the sphere of employment and awarded entitlement to temporary disability benefits.

The main factors for denying benefits after a termination while on light duty work restrictions would seem to turn on (1) whether the worker's medical condition is currently temporary in nature as not yet reaching maximum medical improvement (MMI) and (2) whether the termination was based on some voluntary act or conduct of the worker and also (3) whether the work injury disability physically prevents or precludes the availability of alternate employment after the job termination.

Consultation with an Illinois workers comp attorney is advised if you have a case involving light duty restrictions and a termination from employment. The benefits may or may not be payable on a case by case basis depending on the conduct of the employee or the employer and the light duty medical status of the injured worker at the time of termination.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 11-14-08

Illinois Commission Searches for New Chairman

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 09 Nov 2008 21:00:00 +0000

11-09-08

Chairman Gerald Jutila resigned for health reasons effective, November 6, 2008. Chairman Jutila only recently took over the reigns at the Illinois Workers Compensation Commission approximately 30 days ago when former Chairman Dennis Ruth left to become an Illinois state judge. In a formal announcement dated 11/06/08, the Commission staff advised of Chairman Jutila's immediate resignation and return to his former position as an arbitrator.

We expect the announcement of an Acting Chairman should be forthcoming shortly while a post election search is conducted to find a new Chairman for the Commission. Senate confirmation and official appointment by the Governor's office should follow shortly thereafter.

Any new chairman is expected leave his or her stamp on the Illinois Commission with the proposed introduction of a new computer system to more accurately track Illinois work injury claim statistics and to comply with new Medicare and state agency data sharing. Medicare and CMS are currently in the process of identifying those states that are able to provide WC data match with the Medicare eligible database. Also, the late Chairman Ruth had proposed review of the Rules of Practice before the Illinois Commission before his early departure.

The resignation of Chairman Jutila also coincides with recent pending proposed implementation of a new Illinois Medical Fee Schedule for Hospital Outpatient and Ambulatory Surgery Centers. Adherence to the new medical fee schedule and resolution of disputes over accurate payment protocols are sure to follow.

Regrettably, Chairman Jutila's stewardship and leadership will be greatly missed. With over 29 years of practical experience in Illinois work injury claims both as an attorney before the Commission and more recently acting as an Arbitrator ruling on disputed claims, he offered the hope of pragmatic solutions for increased resolution times without compromising due process rights or rights to a full hearing.

Chicago workers compensation attorneys -- http://wc-chicago.com --11-09-08

Illinois Workers Compensation Medical Fee Geozips

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sat, 01 Nov 2008 13:00:00 +0000

11-01-08

Critics decry the current WC Medical Fee Schedule as not recognizing enough real present medical cost savings but, if they look at historical rates of medical cost inflation, they would see the true value of the present WC Medical Fee Schedule is in capping the rate of medical inflation and not in the immediate slashing of medical fees.

The WC Medical Fee schedule certainly results in immediate cost savings in those cases where certain medical providers were charging excessive fee amounts beyond the norm but, you don’t hear a single word uttered from the same critics about those savings even being mentioned.

The highest billing medical professionals or hospitals for a given Geozip (a billing area looking at the 1st three numbers of the zip code), billing at the top or 100th percentile of their peers, based on their local historical charges and with the exact same medical billing codes, would be greatly reduced under the new Illinois Workers Compensation Medical Fee Schedule. Those top billing medical providers would be reduced down to 90% of the 80th percentile. Those savings must be occurring statewide and those savings must represent a significant ongoing immediate cost savings for Illinois employers trying to protect jobs here in Illinois.

Where are the reports of those savings? Two of our local orthopedic surgeons are presently studying the immediate effects and extent of those cost savings.

Utilization Review (see sec. 8.7) is the new tool for Illinois businesses specifically designed to achieve medical cost savings by eliminating unnecessary and unreasonable medical care and where the current 2005 reforms are really expected to obtain the most significant medical cost savings for insurers and management besides capping medical inflation. That is why insurers and management lobbied so hard for utilization review to begin with, in and amongst the many other negotiated exchanges in the agreed bill process.

Utilization Review is presently highly under utilized in Illinois workers comp insurance practices and therefore employers and insurers are not properly recognizing the medical cost savings that they were expecting and that were in fact built into the 2005 WC reforms.

The importance of retaining Geozips in Illinois for the Illinois Workers Compensation Fee Schedule is that it maintains historical medical charges for any given area and historical levels of access to medical care.

The insurers don’t presently like paying claims based on the Illinois WC Geozip system because their software is not geared for the 29 geographical Geozip pricing areas for the entire state. They must take the time and expense to process the workers comp medical bills by the Geozip system. The real protest to the geozip system by insurers is about the inconvenience of processing bills rather than an issue of providers shifting geozip care sites for a marginal profit edge.

Yes, it will require either more workers or new software by the insurers to process the workers compensation medical bills given the many Geozips involved but, the multiple Geozip system guarantees the access to medical care for areas based on the traditional rates and traditional charges.

If an area historically had medical charges that were lower, then the overall cost of providing medical services in that area given the associated lower overhead costs were probably much lower to begin with. Higher local rents, higher local taxes and higher local salaries do in fact run up the cost of medical overhead and therefore are reflected in the historical medical charges. Under the Medical Fee Schedule Geozip system, the lower overhead cost areas are reimbursed proportionately to their surroundings and historical medical charges.

Critics have complained about the different reimbursement rates for different Chicago suburbs citing Evanston and Oak Park, but Oak Park is one of the nicer neighborhoods in the city of Chicago and the high property taxes and high property values reflect that difference. Those property taxes and the high property costs are built into the past historical medical charges.

The proposed alternative of having just 3 geographical pricing codes for the WC fee caps over an entire state leaves a lot of providers no choice but to move to where they can obtain higher reimbursement rates and thus would deprive the traditionally more rural areas or traditionally poorer areas of the state. The 3 code system would be assailed as being ultimately discriminatory against the rural and poor areas, not by design or intent but discriminatory in applied effect.

Critics should look before they leap. Labor and management were extremely concerned about the future access to medical care issues at the time of the development of the 2005 Workers Comp reforms. The Geozip system answers those concerns and it avoids further depletion of medical care in poor urban and rural areas.

Any attempts to defraud the current system can be properly dealt with and addressed by the newly beefed up Illinois workers compensation fraud unit and prosecuted in a system where the fines can be quite expensive and quite extreme. A medical provider would be extremely foolhardy to attempt shifting medical care to a different geozip merely to obtain a marginally increased payment. Such a thinly veiled attempt at insurance fraud would likely face the workers compensation fraud unit prosecution.

Illinois Workers Compensation Fraud Prosecution

It is illegal for anyone—a worker, employer, insurance carrier or medical provider to intentionally do any of the following:

• Make a false claim for any WC benefits;

• Make a false statement in order to obtain or deny benefits;

• Make a false statement in order to prevent someone from filing a legitimate claim;

• Make a false certificate of insurance as proof of insurance;

• Make a false statement in order to obtain WC insurance at less than the proper rate;

• Make a false statement in order to obtain approval to self-insure or reduce the security required to self-insure;

• Make a false statement to the state’s fraud and noncompliance investigation staff in the course of an investigation;

• Help someone commit any of the crimes listed above;

• Move, destroy, or conceal assets so as to avoid payment of a claim.

A “statement” includes any writing, notice, proof of injury, or any medical bill, record, report, or test result.

Anyone found guilty of any of these actions is guilty of a Class 4 felony, punishable by 1-3 years imprisonment and a $25,000 fine.

Any valid complaints should be addressed to the Illinois Workers Compensation Fraud Unit by calling Toll Free to: (877) 923-8648.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 11-01-08

Illinois Workers Compensation Annual Report 2007

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 19 Oct 2008 20:00:00 +0000

10-19-08

On October 2, 2008, the Commission released its Annual Report of Operations for 2007. Highlights indicate that total claims were again down from previous year totals with a total of 56,685 new cases filed in FY2007 including both filed claims and pro se settlements. Total claims were down approximately 13% from year 2003.

Each year roughly 250,000 work accidents occur in Illinois but only claims involving 3 days or more lost time from work are reportable to the Commission. Approximately 80,000 injuries are reported by employers each year involving 3 days or more lost time. Out of all reportable injuries, approximately 60,000 formal new claims are filed each year either by a formal Application for Benefits or as an original settlement.

In an original settlement, the worker generally does not have an attorney and settles direct with the employer or the insurance carrier. In the year 2007, the report reflects original “pro se" settlements were filed in 9,231 cases representing 16% of all claims. In the remainder of claims, injured worker's hired an attorney 83% of the time with a filed formal Application for Benefits.

Not surprisingly, Chicago and the collar counties with hub cities within an hour or so from Chicago account for approximately 57% of all Illinois work injury claims. Also not surprisingly, back and neck claims accounted for the largest sector of reported injuries totaling 20% of all injuries in 2007.

Thanks to the addition of a third panel of Commissioners deciding cases at the Review level, the amount of formal decisions from the Commission on review from an Arbitration Decision increased by 50%.

Interestingly, when an injured worker files an appeal to the Review level before the Commissioners, benefits were only increased 17% of the time. In appeals by the worker benefits were actually reversed or decreased in 12% of the cases. The great majority of appeals by the worker resulted in no change of the Arbitration Decision in approximately 71% of appeals.

In employer appeals to the Review stage, benefits were also affirmed 70% of the time. However, the employer was successful in obtaining a reduction or a decrease of the Arbitration Decision in 18% of appeals filed by the employer.

The average time that a case takes to proceed from filing an Application for Benefits through the final Decision on Review is approximately 4 1/2 years. That number is deceptively high because in most cases the attorneys and arbitrators are forced to wait until medical care has concluded before an assessment of the permanent nature of the injury, final restrictions or return to work status can be assessed. The actual appeal time on Review during 2007 represented 19 months or approximately 1 1/2 years from the date of the arbitration of decision.

Most litigated cases at the Illinois Commission are settled by and between the attorneys. While total claims disposed of in 2007 totaled 60,681, between settlements, decisions and dismissals, the actual formal Arbitration Decisions were issued in only 3,644 cases representing a ratio of only 4 % of total dispositions.

The take away message for most might be that most parties are best served by representation with an experienced Illinois workers compensation attorney to arrive at an early compromise settlement rather than facing the delays of trial and appeal.

However, it should also be noted that Arbitrators in Illinois perform a crucial key function in supplying sound pretrial recommendations to assist attorneys in resolving areas of disagreement and disputed issues.

Formal decisions of the Arbitrator are appealed in less than 50% of all cases that go to trial so therefore the informal pretrial recommendations by the Arbitrator weigh strongly with the parties. After all, it's not nice to ignore the pretrial recommendations of the person most crucial to deciding the disputed issues of the case.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com -- 10-19-08

Mandatory Overtime Hours included in Average Weekly Wage

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 21 Sep 2008 16:01:00 +0000

9-21-08

The 18 year battle over including or excluding overtime hours in the calculation of average weekly wage continues to rage. All Illinois benefits are derived from the workers "average weekly wage" in the 52 weeks preceding the accident. Accordingly, weekly earnings or weekly wages have been a hotly contested area of dispute. Average weekly wages are used to calculate both temporary disability benefit rates and permanent disability benefits. Section 10 of the Illinois Workers Compensation Act clearly and specifically excludes overtime earnings in calculation of average weekly wage.

However, since 1990, in Edward Hines Lumber, mandatory overtime hours have been included where they form the "regular hours" of employment. There the worker for Hines Lumber was regularly required to work mandatory 10 hour days, for 6 days a week, as a condition of his regular employment. Since the overtime hours were mandatory and required as part of the "regular employment", the overtime hours were included in the calculation of wages at the straight time rate of pay.

After the Hines case, the Illinois Commission continued to exclude overtime earnings if either not regularly worked or if not mandatory. The Commission's definition of "regularly worked" generally included overtime hours at the straight time rate of pay if the worker "regularly worked" overtime hours in more than 50% of the weeks or where the overtime was mandatory. The Illinois Appellate Court also consistently excluded overtime hours that were not mandatory as a condition of employment or which were not part of a set number of hours or regularly worked each week as part of the regular employment. Edward Don (2003) and Freesen (2004).

Last year in Airborne Express (March 2007), the court held voluntary overtime is excluded. The Appellate Court said that merely working voluntary overtime on a regular but voluntary basis, is definitely excluded in calculation of average weekly wage otherwise, the overtime exclusion in Section 10 of the Act would be completely meaningless. Some have argued that Airborne excludes all overtime hours unless both mandatory and consistently regularly worked as a set number of hours but, that does not appear to accurately comport with the prior case law under Freesen and Don or prior Commission decisions.

Shortly after Airborne decision, the Commission decided Terrell v Jacksonville (07 IWCC 1319, October 2007) wherein the Commission said that to include the overtime hours, the worker must show that the overtime was either regular and consistent or mandatory. In Terrell, a mental health technician was required to work overtime hours because the facility was short staffed and the employer did not deny the overtime was mandatory so, the Commission included the overtime. In Lockhart v Dominick's (08 IWCC 318, March 2008) a delivery driver testified he was required to finish daily deliveries and some of his overtime hours were mandatory but, he failed to prove the exact amount of mandatory overtime hours so the overtime hours were excluded. Recently in Heffner v Little Lady (08 IWCC 510, May 2008) the Commission also denied inclusion of the overtime hours for a maintenance supervisor where the overtime hours were not shown to be mandatory or part of the regular hours of employment.

In reading the case law, it looks like the definition for exclusion of overtime under Section 10 is much more easily defined than in considering all the situations where overtime hours might or should be included in calculation of wages. The Appellate Court in Airborne clearly said that they have consistently held that the Section 10 exclusion of overtime in calculation of weekly wages excludes all overtime hours where the worker is not required to work the overtime as a condition of employment (i.e. mandatory) or excludes the overtime hours which are not part of a set number of hours consistently worked each week.

The nuance in terms in overtime wages is often misunderstood. Workers and employers should both be very concerned with the proper calculation of average weekly wage and they should both be encouraged to contact an experienced Illinois workers compensation attorney for consultation given that a fair amount of money is involved in calculation of temporary disability benefits or permanent partial disability benefits. Especially large amounts of money can be involved in long term payments of wage differential benefits and in claims for permanent total disability, both of which payments can last for the full lifetime of the worker.

Chicago Workers Compensation Attorneys -- http://WC-Chicago.com -- 9-21-08

ISBA Advanced Seminar on Illinois Workers Compensation

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 15 Sep 2008 02:00:00 +0000

9-14-08

The ISBA Workers Compensation Section will be hosting a CLE program on Advanced Illinois Workers Compensation on October 13, 2008 offered both in Chicago at the ISBA Regional Office (map and directions) and in Collinsville, Illinois (map and directions). The course will include current topics facing Illinois workers' compensation attorneys, including repetitive trauma in carpal tunnel cases, workplace slip and fall injuries, parking lot cases, qualifications and obligations for vocational rehabilitation and job retraining, Medicare Set Aside future medical expense accounts – avoiding pitfalls, ethical practice considerations at the Illinois Workers Compensation Commission and an update on recent Illinois workers compensation case law.

John B. Adams,moderator, Roddy, Leahy, Guill & Zima, Ltd, Chicago

Speakers:

David Barish, Katz Friedman Eagle et. al., Chicago (Chicago program)
Deborah Benzing, Law Offices of Lauren Meachum, Chicago (Chicago program)
Brad Bleakney, Bleakney and Troiani, Chicago (Chicago program)
Richard Hannigan, Mundelein (Chicago program)
Carol Hartline, Williams and McCarthy, Rockford (Collinsville program)
Jennifer Kieswetter, Ottawa (Chicago program)
Michelle Lafayette, Ganan & Shapiro, PC, Chicago (Collinsville program)
Kevin Meckler, Carbondale (Collinsville program)
David Menchetti, Cullen, Haskins, Nicholson & Menchetti, Chicago (Chicago program)
Robert C. Nelson, Nelson & Nelson, Belleville (Collinsville program)
Bradford Peterson, Urbana (Collinsville program)
Lawrence Scordino, Chicago (Chicago program)
Kristen Wadiak, Beatty and Motil, Glen Carbon (Collinsville program)
Kenneth Werts, Craig & Craig, Mt. Vernon (Collinsville program)

ISBA members $135 in advance and $150 the week of seminar. 5 MCLE credits For online registration

Chicago Workers Compensation Attorneys -- http://wc-chicago.com - 9-14-08

New Chairman for Illinois Workers Compensation Commission

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Wed, 10 Sep 2008 21:33:00 +0000

09-10-08

Governor Blagojevich appointed a new Chairman of the Illinois Workers Compensation Commission, effective October 3, 2008. Arbitrator Gerald Jutila was unanimously recommended by the Workers’ Compensation Advisory Board and appointed by the Governor. Under the 2005 workers’ compensation reforms, the Advisory Board makes recommendations on Commission appointments to the Governor.

Chairman Jutila holds a B.A. degree in Political Science from the University of Minnesota and a J.D. degree from John Marshall Law School. Chairman Jutila also served as an arbitrator at the Chicago Commission since September 2004. He has over 29 years of practical experience in workers’ compensation as an attorney primarily representing injured workers.

As an attorney, Jutila has a broad range of experience at all levels of workers compensation practice, appellate practice and 3rd party negligence practice bringing a well rounded perspective and depth of prior case law to the Chair of the Commission. His knowledgeable and practical legal background will provide the Commissioners and members of the Commission with an invaluable resource.

Chairman Jutila's talents in both personal persuasion and leadership should gain cooperation from Commission staff and practicing attorneys from both sides of the isle.

As a practicing Chicago workers compensation attorney we more than welcome the appointment.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 9-10-08

Mandatory Insurer Reporting (MIR): Medicare Secondary Payer Reporting

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Tue, 12 Aug 2008 18:30:00 +0000

A new law known as Mandatory Insurer Reporting (MIR) eff. January 1, 2008, will require insurers to report coverage information or claim information for Medicare beneficiaries to CMS for the purposes of coordination of benefits.

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (PL 110-173) amends the Medicare Secondary Payer (MSP) provisions of the Social Security Act (Section 1862(b) of the Social Security Act; 42 U.S.C. 1395y(b)) to provide for mandatory reporting of insurance coverage for group health plans, liability insurance (including self-insurance), no-fault insurance, and workers' compensation. The new law imposes a reporting duty on carriers to report the identity of Medicare beneficiaries and coverage information to CMS for all those that are covered by "primary" plans like health insurance, or active claims under workers compensation or auto liability plans.

On 8-1-08 CMS released a Statement Summary listing Medicare mandatory reporting "data elements" listing required reporting details and the reasons behind implementing the requirements. Carriers must now notify CMS if a known Medicare recipient has a claim or coverage. Fines for noncompliance are $1,000 /day.

Compliance dates: -- January 1, 2009 information reporting for group health plans
-- July 1, 2009 reporting from liability insurance, no-fault insurance, and workers' compensation.

It is expected CMS will demand to be notified of all workers compensation settlements or all liability settlements for any Medicare beneficiaries so as to enforce the Secondary Payer Regulations, Medicare lien recovery rules and credits against future payments for injury related medical expense. Reporting requirements may also include (1) Nature of Injury, (2) Cause of Injury, (3) State of Venue, (4) ICD-9 primary diagnosis codes and (5) Specific Body Part involved. See the Statement Summary above for a detailed listing of data elements.

CMS created a central web page, Mandatory Medicare Insurance Reporting, for summary information regarding the updated carrier reporting requirements, updated memos and .pdf downloads.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 8-12-08

Chicago Workers Compensation Attorneys

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sat, 02 Aug 2008 18:00:00 +0000

8-02-08

Chicago workers compensation attorneys with advanced trial and appeal practice before the Illinois Workers Compensation Commission since 1984. We have successfully tried all types of Illinois work injury claims in construction, food service, hospital, manufacturing and transportation.

Our Chicago workers compensation attorneys have extensive trial experience in Illinois injury claims covering a broad range of medical conditions and injury types. Our experienced attorneys work to maintain a competitive edge in Illinois work injury litigation and workers compensation injury claims.

We attempt to provide each client with individual instruction, preparation, education and available options in Illinois work injury claims. We provide dedicated and aggressive representation in Illinois workers compensation and assistance in work injury litigation in Chicago and the surrounding area cities which include:

Chicago and suburbs, Waukegan, Barrington, Lake Zurich, Mundelein, Libertyville, McHenry, Woodstock, Geneva, St. Charles, Wheaton, Downers Grove, Orland Park, Hinsdale, Naperville, Aurora, Romeoville, Joliet, Bourbonnais and Kankakee.

Covering Cook County, Lake County, McHenry County, Kane County, DuPage County, Will and Kankakee County.

If in need of assistance, contact our office at (312) 541-0049 for a review, meeting or claim consultation.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 8-02-08

Illinois Employee Classification Act: Construction Workers, Proposed Rule Changes

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Mon, 28 Jul 2008 15:26:00 +0000

7-28-08

The Illinois Employee Classification Act provides that individuals performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the criteria specified in the Act. If a contractor has misclassified individuals as independent contractors, the Department may assess civil penalties and seek other remedies provided for in the Act.

See link for an overview of the Act’s definitions and prohibitions .

The Act addresses a known practice in the construction industry of contractors misclassifying individuals as independent contractors in order to avoid payroll taxes, unemployment insurance contributions, workers' compensation premiums and minimum wage and overtime payments.

For the purpose of ensuring that all Illinois contractors comply with Illinois tax and employment laws, the Illinois Department of Labor, the Illinois Department of Employment Security, the Illinois Department of Revenue and the Illinois Workers' Compensation Commission will be sharing any information on employers suspected of misclassification of employees as independent contractors.

The Department of Labor issued new proposed rule changes for the act 6/26/08 in response to recent public comments and recent departmental experience. The hearings on proposed rules will be heard before the Joint Committee on Administrative Rules.

Questions regarding proposed rule changes, contact Carmela Gonzalez at 312-793-1808.

Chicago Workers Compensation Attorneys – http://wc-chicago.com 7-28-08

Overfunding Workers Comp Medicare Set Aside Accounts with No Appeal Rights

BEB@WorkComp-Chicago.com (WorkComp Chicago) — Sun, 27 Jul 2008 20:20:00 +0000

7-27-08

The National Alliance for Medicare Set-Aside Professionals (NAMSAP) issued a recent letter 7/2/08 directed to CMS listing grievances in the CMS review approval process for Medicare Set-Aside Allocation (MSA) proposals. The very real concern for all parties is that these MSA approval decisions are final. There exists no appeal process from the final administrative decisions regarding MSA future medical funding. It has been stated that MSA proposal reconsideration submissions (the only current process available) have been met with resistance and/or were generally ignored.

For the sake of brevity, the short list of pressing concerns is paraphrased below:

1. INCLUDING NON- MEDICARE ITEMS OR TREATMENTS: Recent MSA approvals are routinely requiring funding for non- Medicare items or treatments which would not be covered by Medicare nor for which the workers compensation insurance carriers would be liable under the state workers' compensation laws.

2. APPLYING STANDARDIZED NATIONAL PRICING: CMS has applied their own standardized national pricing for some procedures, such as Spinal Cord Stimulators, without regard to actual price levels in the state of injury, locale of the injured worker or the relevant state Workers Compensation Fee Schedule. The result is that the national pricing is either too high or too low in funding recommendations for the MSA.

3. UPCODING OF CPT CODES for some treatments that result in higher MSA funding costs. An example was given of upcoding historically accurate 99213 office visits to 99214 office visits. It is alleged that this upcoding occurs as well on MRI's (adding in with contrast codes, instead of standard without contrast code, and x-rays (changing historical 2-3 views to 4 views). By "upcoding", the WCRC is not pricing the MSA pursuant to the amount which Medicare or the insurer would have actually otherwise paid.

4. HIGHEST ONLINE PRICING FOR MEDICAL EQUIPMENT: not the average price at which the equipment can be purchased and the high pricing is often contrary to the relevant state WC fee schedule. In some cases CMS required full MSA funding for all of the following: a cane, a walker, a manual wheelchair, and an electric wheelchair even though Medicare would not actually cover or pay for all those items under their own coverage guidelines for an actual Medicare Beneficiary.

5. ACCEPTANCE OF IME REPORTS only when they recommend increases for medical treatment exceeding the recommendations of the treating physician. Conversely, CMS will not accept the IME opinion reports if they recommend less treatment than that recommended by the treating physician.

6. IDENTICAL CASES NOT GIVEN THE SAME MSA FUNDING APPROVAL. Although the irregularities listed are not claimed to occur in all cases, eliminating variances would help in preparing future MSA proposal estimates for ready approval.

7. IGNORING LIMITATIONS UNDER STATE WORKERS' COMPENSATION LAW: The obligations of the WC employer or insurer for payment of injury related medical expense is defined by that particular state’s workers' compensation law, but that liability or limitations of liability of the employer under their state’s law is routinely ignored by CMS when assessing MSA proposals effectively denying the employer or insurer due process and substantive rights.

A copy of the 7/02/08 letter by the NAMSAP Board of Directors is available here at the following link: NAMSAP Letter (http://www.gouldandlamb.com/files/NAMSAP_Position_Letter.pdf)

The hopes are that CMS will now address these consensus problems that have been increasing the overall cost of MSA approval amounts and ultimately, increasing the overall cost of Workers Compensation settlements.

In discussions with local MSA attorneys in Chicago, the unanimous complaint mentioned is the extended delay time in obtaining prior Medicare “conditional payment” amounts in order to finalize any reimbursement claims.

From our perspective, the concern remains that CMS/ MSA approval amounts do not correlate with or reflect the actual “compromise” value of the workers compensation settlement.

While workers compensation claims often remain disputed in significant respects and settlement dollars usually represent real “compromise” figures pricing in the value of disputed issues, CMS continues to require 100% funding of MSA future medical accounts for anticipated treatment even where that medical treatment itself may remain disputed and/or even where the injured worker is only receiving 50% or less of the full value of the claim. The proportional disputed “compromise” values of disputed issues are not reflected in the MSA account approval amounts.

While workers compensation carriers should not be able to pawn off related future medical expense onto Medicare and the taxpayer, the employers and work comp insurance carriers should not be required to pay for more than their fair share of liability for open medical rights or expenses under the workers compensation claim any more than if that claim had remained open.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 7-21-08