Illinois Workers Compensation

Illinois Workers Comp Medical Costs below neighboring states Wisconsin, Iowa and Indiana

noreply@blogger.com (Work Comp Chicago) — Thu, 05 Nov 2015 19:28:00 +0000

CRAIN'S Chicago Business, Senior Reporter, Thomas Corfman ( http://bit.ly/1MtlVdW ) recently reported that under the 2011 IL workers comp reforms, medical costs per claim have now dropped by 15%. Citing a report from the Workers Compensation Research Institute ( http://bit.ly/1Q7kgve ), CRAIN"S Chicago Business reported that Illinois Workers Comp medical payments fell by over 15%, down to an average of $14,513 per claim, during the 12-month period ending Sept. 30, 2013, which was over15% down from $17,140 per claim incurred in 2010-11.

I expect that when the final numbers roll in from 2014 and 2015 we should see some substantial medical savings documented for Illinois employers from the major workers comp reforms put in place in 2011.

According to the WCRI report, Illinois' medical payments per claim are down lower than Indiana ($18,863), Wisconsin ($17,787) and Iowa ($16,051) for the same review period. JUST AMAZING.

This is great news for all Illinois employers who have been waiting patiently (or not so patiently) for lower workers comp premiums based upon the lowered Illinois medical fee schedule rates and UR reforms.

Some of the medical savings incurred are likely due and directly attributable to the 30% slashing of the IL Workers Comp Medical Fee Schedule reimbursement rates from 2011 and some of the savings are likely attributable to new utilization review enforcement which challenges what medical care is actually being approved by Illinois workers comp insurance carriers as being both "reasonable and necessary".

Widespread utilization review is now often leading to great difficulty for injured Illinois workers seeking recommended medical treatment. Out-of-state UR doctors in a "medical records review only" are often utilized to deny medical treatment recommended by Illinois physicians including lumbar fusions, length of PT, objective testing or common surgical procedures.

Perhaps this review process needs to be brought back into our state to compare apples to apples on what is considered both reasonable or necessary.

Injured Illinois employees are typically forced to seek out representation by an experienced Chicago workers compensation attorney for medical treatment which has been recommended but denied and for pursuing UR appeals. Trial may often prove necessary to contest the initial UR denial of medical care but, for better or worse, the overall reform package of 2011 is working to cut medical costs for Illinois employers.

Illinois workers comp reform: Notice of Preferred Medical Provider

noreply@blogger.com (Work Comp Chicago) — Wed, 26 Oct 2011 12:00:00 +0000

10-26-11

The Illinois Workers Compensation Commission has approved the official language to be used to notify injured employees of employer selected "Preferred Provider Programs" (PPP) that is, employer selected medical networks for work injury related medical care. This is the official form language to be used to notify the injured employee of the employer's selection of their medical provider network as soon as the employer is made aware of the work injury.

Employers can voluntarily issue an advance notice of workers comp medical network by using the additional form language provided. However, even if the advanced general notice of workers comp medical network is posted or given to all employees, the above official Notice of Workers Comp Medical Provider (PPP) must still be issued in a timely manner soon after the employer receives notice of an actual work accident or work injury.

These PPP networks must still be approved by the IL Dept of Insurance and approvals are expected for use by Jan 1, 2012. The Illinois Department of Insurance is currently accepting Preferred Provider Program applications for approval and as the process unfolds, the approved list of "Preferred Providers" ( pdf download) will be available on their website.

The IL Dept of Insurance website also provides FAQs regarding Workers’ Compensation Preferred Provider Programs and any additional questions concerning PPP applications can be directed to Kari Dennison (217) 782-1771 with the Illinois Department of Insurance.

Illinois workers comp attorneys -- 10-26-11

New 2012 Illinois Downstate Arbitration Hearing Locations

noreply@blogger.com (Work Comp Chicago) — Mon, 05 Sep 2011 17:03:00 +0000

9-05-11

As part of the new Illinois workers compensation reform package, downstate hearing locations will be consolidated into the 6 regions listed below to take effect on January 1, 2012. The reduction in hearing locations is structured to conform to the new rotating arbitrator requirements in House Bill 1698/Public Act 97-18.

The reduction of the current 23 downstate hearing locations to the 16 new locations will increase the efficiency of the Commission by reducing associated facility costs and attempt to evenly spread out pending caseloads between arbitrators for more efficient allocation of human resources. The reduction will also require some injured workers to drive greater distances to have their claims heard for trial.

Three arbitrators will now appear at each of the new hearing site locations in rotation at each location as required by the new law and cases will be randomly assigned among them. A set of 3 arbitrators will circulate within the designated geographical zones with each arbitrator taking their turn at handling monthly hearings and motions with a return to the 90-day continuance cycles.

The rotation of the 3 arbitrators through a particular downstate hearing location was put into place by the new Illinois workers comp reform law to prevent what was perceived as overly familiar relationships between practicing attorneys and sitting arbitrators. The legislators specifically wanted to bust up what they perceived as being overly familiar or overly "cozy" relationships between practicing attorneys and arbitrators regularly appearing at specific downstate hearing locations.

New 2012 Arbitration Regions/Hearing site locations effective 1-01-2012:

1) Collinsville, Herrin, Mt. Vernon

2) Quincy, Springfield, Urbana

3) Bloomington, Kewanee, Peoria

4) Geneva, Joliet, Ottawa

5) Rockford, Waukegan, Woodstock

6) Wheaton -- 3 Chicago arbitrators will be assigned to Wheaton

The Workers Compensation Commission will shortly proceed to reassign all pending downstate cases to the new hearing locations and will make new assignments to individual arbitrators once all the arbitrator re-appointments have been made and the new hires for arbitrator are announced. Notice of Hearing forms are expected to issue reflecting both the new geographic location for hearing and the new arbitrator assignments. Partially tried cases will continue to stay with the original arbitrator assigned where ever possible for completion of hearings and issuance of decision.

Questions regarding the new hearing locations should be directed to Ms. Bertha Parker at bertha.parker@illinois.gov .

Illinois workers compensation attorney -- 9-05-11

IL Workers Comp Reform: Aggravated DUI will be denied

noreply@blogger.com (Work Comp Chicago) — Mon, 22 Aug 2011 12:00:00 +0000

8-22-11

On August 8, 2011, Governor Quinn signed Senate Bill1147 into law to prevent workers convicted of serious crimes from claiming workers compensation benefits.

Senate Bill 1147 denies workers compensation benefits for injuries sustained during the commission of 1) a forcible felony, 2) an aggravated DUI or 3) during a reckless homicide if those crimes resulted in the death or severe injury to another person.

According to a Chicago Tribune article, the new law was inspired by the Illinois State Police trooper's high-speed wreck that killed 2 sisters in down state Collinsville. The state trooper was reportedly driving more than 100 mph and using his cell phone on I-64 in southern Illinois when his cruiser crossed the median and slammed into another car killing the 2 sisters. The public was outraged that the injured officer could apply for and perhaps receive workers compensation benefits resulting from his own outrageous conduct. The trooper subsequently resigned and his workers compensation case was denied but even the possibility of collecting benefits caused the new law to be pushed into place as part of the new Illinois workers compensation reforms.

Now, after a worker is even charged with a forcible felony, an aggravated DUI or reckless homicide resulting in injury, the injured employee is prohibited from collecting workers compensation benefits until their criminal case is finally concluded. The employer can terminate or refuse to pay benefits until the conclusion of any pending criminal case.

Under the new law, an acquittal or dismissal of the criminal charges does not guarantee receipt of benefits. After the criminal case, an injured worker who is not convicted will still need to prove entitlement to benefits just like any other injured worker but, a finding of guilty will prohibit benefits for injuries sustained during the criminal conduct because the injured employee is considered not to be “in the course of employment” during the commission of any of these crimes.

Usually an employee committing a crime would not collect benefits even without the new law. Criminal activities are not considered to be in the scope of employment and workers committing crimes are generally not awarded benefits. Traffic offenses were not always included in that prohibition. It is possible that an employee entertaining business clients or traveling on business might be guilty of drunk driving and recover benefits in an accident. Now however, if the drunk driving results in injuries to a 3rd party and the employee is convicted, he or she will be prohibited from collecting benefits. Workers entertaining clients might want to think twice before driving under the influence. They may be working but their resulting injuries may not be paid and that would also include medical bills.

Conviction for driving drunk or under the influence of drugs and injuring another person will now prohibit the injured worker from collecting benefits including medical bills. This new law slams the door shut on the possibility of workers trying to collect benefits if found guilty of injuring another person during otherwise criminal conduct.

Illinois Workers Compensation Attorney -- 8-22-11

Attorneys Fees on MSA Funds Confirmed in N.J.

noreply@blogger.com (Work Comp Chicago) — Fri, 19 Aug 2011 01:00:00 +0000

8-18-11

The New Jersey Superior Court recently considered whether Medicare regulations and CMS allowed an attorney to recover attorneys fees for creating a settlement obtained on behalf of a client in a civil suit from the Medicare set aside funds itself. Surprisingly, they said Yes.

The Court in Hinsinger v. Showboat (L-3460-07, released 5/19/11) reviewed the provision in the Code of Federal Regulations 42 C.F.R. 411.37 permitting the reduction of procurement costs from MSP recoveries in conjunction with the CMS Memo of May 7, 2004 regarding attorney set up costs associated with MSA trust accounts and found no reason why attorneys fees shouldn't apply to procurement of MSA recoveries in civil settlements as well as other primary insurance such as workers comp.

This case would approve taking attorney's fees on procurement of workers compensation MSA funds as proper under the Code of Federal Regulations. I know of no controlling case law in Illinois governing the subject to the contrary but, the propriety of taking attorneys fees on funds created for MSA accounts has come up many times in discussions.

This New Jersey civil case would seem to stand for the proposition that attorney's fees for procurement of MSA funds are proper in both personal injury and workers compensation settlements. 42 C.F.R. 411.37 permits the costs borne by the party against which CMS seeks to recover be deducted from Medicare's recovery amount.

Read the Hinsinger article on the MedVal Official Medicare Set Aside Blog by Jennifer Jordan and Ryan Roth. It happens to be my best source for keeping up with all things Medicare Set Aside and MSP compliance. I have previously endorsed Jennifer Jordan's excellent new book on MSP Compliance and Medicare Set Asides . It is a must read for attorneys and industry professionals involved in MSA or MSP compliance, mandatory claim reporting and those who need insight into CMS requirements and procedures. The book covers the regulations, the statutory revisions and relevant case law all in one place with practical instruction, commentary and recommendations for MSP compliance.

The problem remains presently that CMS and Medicare do not currently recognize any reduction in the approved MSA funds for attorneys fees for workers comp. It seems a fairly standard practice in Illinois to allow attorneys fees on most subrogation claims where the settlement funds recovered for the client are paid out to a 3rd party lien holder interest pursuant to the Common Fund Doctrine. It remains to be seen however whether regular Medicare coverage will kick back in on an MSA fund account that has been reduced for attorneys fees.

At least in a civil case, the New Jersey ruling would tend to support a claim that Medicare's interests in the litigation were adequately protected even where the MSA future medical funds were reduced by attorneys fees.

Contact our office to speak with an Illinois workers comp attorney to discuss open medical rights and Medicare set aside fund coordination in Illinois workers compensation claims.

Chicago workers compensation attorney -- 8-18-11

2011 Illinois workers comp reform: Medical Causation

noreply@blogger.com (Work Comp Chicago) — Mon, 18 Jul 2011 02:00:00 +0000

7-17-11

Has the test for causation changed with the new 2011 workers comp reforms ?? A change may have taken place in the "causative factor test" to now require proof of medical causation by a "preponderance" of the evidence. The new law is subject to Appellate Court review and interpretation but, the newly stated preponderance of the evidence standard may eliminate claims that "could or might" be related to a work injury.

Before the 2011 reforms, the "causative factor test" was used on whether or not the work accident "could or might" be related to the resulting injury. That is, if the work injury could or might be a causative factor in

producing the disability or in producing the need for medical treatment.

    Under the new codified definition of causation, (820 ILCS 305/1(d) on pg. 23) the statute now reads as requiring proof by a "preponderance of the evidence" that the injury arises out of and in the course of the employment. It was explained that this new definition merely restates what was already Supreme Court case law but Illinois workers compensation attorneys are questioning whether the old test of "could or might be related” is in fact dead.

     Without a crystal ball, no one is certain yet on how the Courts will apply the newly codified definition of causation but going forward that new test may require a higher burden of medical proof. It would be a substantive change and would likely apply to accidents occurring on or after July 1, 2011. The new test probably requires that the disability or the need for medical treatment was "more probably than not" related to the work injury. The unofficial definition of "preponderance of the evidence” is by a greater weight or more probably than not.

     A medical opinion may be required stating that the physical injury was "more probably than not" related to the work accident rather than by stating medical opinions as mere possibilities under the old test. I can see where the old test of "could or might be related" is now arguably insufficient to award compensation.

      Further efforts at changing the statutory definition of "causation" may not be necessary. Any pending suggestions for changing the definition of causation further to "primary cause" or "sole cause" are aimed primarily at eliminating claims for aggravation of preexisting condition. I suspect that the primary motive for any proposal changing the definition of causation to "primary cause" or "sole cause" is aimed directly at eliminating aggravation of preexisting condition claims in older workers.

     As I see it, that is problematic for 2 reasons: 1) older workers all have preexisting conditions so changing the definition would discriminate against all older workers, and the older the worker, the more it discriminates and 2) more importantly, the question of "causation" or "aggravation" has always been a medical question for the doctors and not for the lawyers. If the injured worker's treating doctors do not give an opinion supporting causation, the workers comp claim will usually be denied for a failure of proof.

     The new question now presents itself on how much medical proof will an injured worker be required to show under the newly codified definition of causation?? I could be wrong but I believe that the statute now requires medical proof by a “preponderance” of the evidence, or in my translation, a medical opinion that the disability is "more probably than not” work related.

      We will need to wait for the Illinois Courts to confirm the proof required in medical causation but in the mean time we can expect a lot of litigation involving changes in the new reforms.

      I believe the battle ground in many cases will now be the "causative factor test" and whether it requires a showing that the work injury is "more probably than not" the cause for disability or the cause for medical treatment.

      The old standard of "could or might be related” was recently criticized by the State's Attorney General, Lisa Madigan. She correctly indicated that the old threshold test on causation made it difficult to defend questionable cases. The old test of "could or might be related" was criticized as an extremely low threshold for establishing medical causation. If the new definition of causation is now read to require proof by a "preponderance" of the evidence, that may no longer be the case. The old "could or might be related" medical opinions may now be inadequate to win a claim for compensation.

     There is some room for legal debate and the courts will have to decide the issue but proving a claim for compensation may now be much more difficult under the new changes effective 7/1/11.

     The question of medical causation is still largely a question for the doctors on whether a work accident "aggravated or accelerated" an underlying medical condition but changing the law on causation any further to require that work be the "sole cause" or "primary cause" would shift the costs of aggravation of pre-existing condition claims over to employer or union group health care plans, over to the employer and union disability plans and eventually, shift the cost of those injuries over to the Federal or State Public Aid, Medicare, Medicaid and Social Security disability programs.

      Proposals to change causation to eliminate aggravation of pre-existing condition claims in older workers would shift those costs over to other plans. I don't see the actual savings there for Illinois employers. Workers comp premiums would go down but their group health care costs would go up. There is no real savings advantage that I see for business in changing the wording of causation further but merely a cost shifting over to a different loss column. It doesn’t seem to be either humane or a practical political reality to eliminate compensation for older workers with pre-existing conditions, especially where those pre-existing conditions were caused by the job itself.

     Under the newly codified definition of causation, further efforts at changing the statutory definition of causation may now prove unnecessary. As they say, only time (and litigation) will tell.

Chicago workers compensation attorney -- 7-17-11

Keep the Arbitrators and Return Injured Workers to Work

noreply@blogger.com (Work Comp Chicago) — Mon, 11 Jul 2011 13:53:00 +0000

7-11-11

Keep our Arbitrators. On behalf of my clients, I emphatically request not getting rid of our highly trained and experienced arbitrators in favor of new appointees. Commissioners are known to be appointed to short terms coming in. The sitting Governor's office has always held sway over the political bent or philosophical leaning of the Commission by regular appointment of Commissioners. But, our Arbitrators as the initial hearing officers were always civil service employees to prevent political persuasion from constantly effecting their judgment in awarding or denying compensation.

I would think that all Illinois business interests, unions, employers and the insurance companies would all want predictable results from our experienced hearing officers rather than random erroneous decisions by new hearing officers. Workers compensation is full of complicated legal exceptions, full of known and accepted doctrines of risks that arise from the employment and full of numerous and unending exceptions. It takes a fairly long time to learn all the law, the medical terminology and the human anatomy to correctly sift through questions of work trauma or aggravation of a medical condition versus idiopathic pre-existing conditions for a determination of cause and effect in awarding or denying compensation. Add in some physician CPT billing codes with some ICD-9 hospital codes on the medical bill forms, mixed with some Medical Fee Schedule calculations and add in battles over average weekly wage formulas for correctly deciding weekly benefits and you start to get my drift. It's a hell of a lot more complicated than it looks.

Medical causation is a crucial question for all our hearing officers. So crucial in fact that our legislators have been fighting over the legal definition of causation for Illinois workers comp cases for the last 8 months (and really since 1975). Illinois business interests and the unions should both make a concerted push to retain most if not all of our arbitrators and Commissioners to guarantee consistent application of the workers compensation law.

It must be clearly stated that our arbitrators, the Courts and the Commission have not been the problem on driving up workers compensation costs in the recent past. I know that certain attorneys have blamed them. But in tracking these awards for over 25 years, the value of most of these disability awards has actually been falling. Part of that decline in the awards is the result of arthroscopic surgery and our doctors are getting much better surgical outcomes which result in far less disability. These arbitrators and Commissioners do not need to be replaced in wholesale fashion as the main culprit in increasing the costs of workers compensation claims. Medical inflation had been a real factor since 1995 in driving up costs but that was capped off in the 2005 reforms. Recently, Medicare Set Aside funding for Social Security applicants has had a huge impact on driving up the medical costs per claim on our Illinois workers compensation cases for the past 10 years.

Employers, Medicare and the "Great Recession" should all step up and take a big bow for their outstanding performance on the huge run up in Illinois workers compensation claim costs. Laying off workers with work related disabilities or medical restrictions in a recession costs big money. Whenever an employer refuses to take an injured employee back to work within the medical restrictions, the value of the claim jumps dramatically. That is an understatement. The claim costs jump by 500%, 1,000% or 2,000% or more. A lot of Illinois employers were their own worst enemy by not taking their own injured workers back to work.

That failure to return an injured employee to work within their restrictions results in large wage differential claims (costly partial pensions for life) or sometimes full permanent disability benefit pensions for life if that worker can't find any reemployment in any job at all. If they then happen to apply for Social Security disability, you can add on MSA funding. That is, Medicare wants all possible future medical expenses for an expected lifetime of benefits to be paid out of the worker’s comp settlement. Often that's anywhere from an extra $40,000 to $200,000 dollar increase added on top of back surgery claims and on top of the lost earnings portion of the claim.

If an Illinois employer doesn't want their injured worker back to work within restrictions, how can they expect the insurance company or the worker to find comparable employment or expect other Illinois employers to hire that same worker with those same restrictions at their same former rate of pay. It doesn't happen. The worker almost always suffers a large wage loss and a big earnings reduction. It’s every worker's worst nightmare that the work injury will end their career and end their employment and their ability to support their family. Let's not be uneducated or ignorant of the consequences. If an employer blows a worker out of his/her career due to a job injury, expect to pay a lot of money for it. And, I might add, in this unending recession, don't expect them to find a high paying job elsewhere.

Illinois employers who routinely treat their injured workers like disposable goods (especially in the construction industry) and throw them to the street when slightly damaged like throwing out the produce in the vegetable isle at the grocery store have directly shot themselves in the foot or shot themselves in both feet for many of the past several years. It’s almost a cultural habit of retaliation for the worker getting hurt to begin with. I've heard risk managers say "I'm not taking that !#!*^&!* back to work here" as if anyone in their right mind would ever intentionally want a hip replacement or back fusion to begin with. It's a very, very bad and very costly habit.

I‘m going to give away my #1 best kept secret in lowering an employer's worker's compensation costs -- take your injured workers back to work -- early and often -- don't blame the system, don't blame the arbitrators, don't blame your attorneys or don't blame the Commission for the high costs of your workers comp claims when treating injured workers like disposable machinery. Needless to say, even throwing away serviceable machinery like cars and trucks before their time is costly too. My plea here is to keep the current experienced Arbitrators and have all our Illinois employers learn to stop habitually throwing away their injured workers. If a few arbitrators are knowingly replaced for good cause, then so be it. But keep the rest of the highly trained and experienced good ones and let Illinois employers kill off their most costly workers comp claims by taking injured workers back to work. Spare those huge lost earnings claims and stop paying those huge Medicare future medical accounts by simply returning injured workers to work.

Illinois workers comp attorney -- http://wc-chicago.com -- 7-11-11

Illinois Workers Comp Reform: 2011 Major Workers Comp Reform Summary

noreply@blogger.com (Work Comp Chicago) — Wed, 08 Jun 2011 13:00:00 +0000

6-08-11

With the on again, off again, drama of Illinois workers comp reform, many wanted to know what the reforms were about, what they actually meant, questioned the future impact of the reforms and questioned whether the reforms were far too little or far too great or in the wrong direction? It seems that everyone had a suggestion and a strong opinion on what needed to be done. From what I see, your position and your opinion depend on where you sit and the view from your perspective. Myself, I have never seen so many differing proposals or so much sponsored workers comp legislation.

     Let me start off by saying that before the 2005 reforms, Illinois had no medical fee schedule in place for workers compensation. Doctors and hospitals would charge what they considered to be the "usual and customary" rates in any given area. Those rates varied greatly by provider and injured employees were allowed their own choice of 2 doctors for work injury care. Both factors made estimating or controlling the medical costs or medical reserves for employers and insurance carriers difficult. Many employers accused employees of doctor shopping for a favorable opinion. Some of that was certainly true and much of it was guided by the advice of an experienced Illinois workers compensation attorney. Of course workers always have their own network of favorable doctors by word of mouth.

     The 2005 Medical Fee Schedule introduced certainty on medical costs and medical inflation by placing caps on doctor and hospital medical fees but they did not limit outpatient services and did not limit the choice of doctor for the injured worker. In 2009 the Illinois workers compensation fee schedule was extended to cover all outpatient facilities like physical therapy and ambulatory surgical centers but the 2005 reforms failed to regulate pharmacy, medical hardware or medical implants. These caps provided some reliability on what the doctors and hospitals could charge for procedures but they did not control all associated medical expense. The caps also failed to address out of state medical providers except to limit payment to 76% of actual charges.

     Importantly, the 2005 medical reforms capped rates of medical inflation and tied increases in the fee schedule to the increase in the consumer price index for urban areas (CPI-U) but our schedule was criticized as the 2nd highest workers comp reimbursement rates for hospitals and doctors in the nation (I should point out for those states that have a fee schedule since some states still don't).

     Attempts at limiting medical care with Utilization Review under the 2005 reforms were largely ineffective in limiting the number of visits to physical therapy, number of chiropractic visits or the number of visits for ongoing pain management because the UR reports (Utilization Review) although granted by statute were largely held to be hearsay documents and therefore not admissible into evidence. The insurance carriers can blame themselves for UR reports not being admitted into evidence. If they had used local in-state, Illinois doctors, surgeons, physicians and chiropractors as suggested for their Utilization Review programs for assessment of proper reasonable medical care, the depositions of the certifying doctor denying care could have been available to the opposing attorneys and then their opinions could have gone into evidence in the form of a deposition but subject to cross examination rights by the injured workers' attorney.

     If I were the judge, even if the UR reports did come into evidence, I don't know that I would ever believe some out of state doctor from New Jersey on what remained reasonable and necessary medical care in Illinois on a cold review of medical records either, especially when that doctor had never examined the patient. Nonetheless, UR might have worked far more effectively for insurance defense carriers and attorneys if they had used Illinois doctors for their reports.

     Recently, in this unrelenting recession, our Illinois employers were loudly demanding cuts in high workers compensation costs. Our Illinois Senate spent the last 7 months reviewing options and holding public hearings throughout the state. Multiple reform measures were introduced by multiple parties but none could be agreed upon politically, largely because in any reduction in workers compensation costs, it would have to be borne by someone invested in the system-- either by reduced benefits for the injured workers, the doctors, the lawyers, the hospitals or the insurance carriers. There was very little agreement on who should give up money or any rights and while the haggling persisted, some of our major Illinois employers threatened to leave the state.

    Governor Quinn promised to deliver Illinois business a new package of Illinois workers comp reforms and Michael Madigan and the Illinois Democrats in the House were able to deliver and pass the reform legislation on 5/31/11 after much haggling and fighting. The legislature passed these reforms in the name of attracting new JOBS.

     Republicans in the House would not support the workers compensation reform package largely because medical rates for doctors and hospitals were to be cut by 30% off the current fee schedule in the 2011 reforms. These drastic cuts of 30% in reimbursement payments were fairly severe for anyone's operating budget and several hospitals testified they would be forced out of business. But, I have never seen Republicans not want to cut costs for Illinois business. It seems that the House Republicans wanted Illinois workers comp reform but they didn't want to severely cut medical costs by 30%.

     It should be noted however that Illinois House Republicans were willing to cut medical payments in Illinois workers comp payments by 20% but they were dealt the severe blow of 30% reductions in payments as to what is considered "reasonable" payment for medical. Those cut rates still far exceed Blue Cross payments, Medicare or Public Aid payments but now some of our best doctors in Illinois may elect to opt out of Illinois workers comp and not accept the new reduction in payments, especially if they don't need to.

     In private conversations with insurance specialists, there is some talk among workers comp insurance professionals that they are willing to pay a higher workers comp premium rate over the now allowed Illinois workers comp medical reimbursement rates for exceptional operative results and outstanding surgical outcomes. The carriers after all save far more money when the permanent injuries are limited by talented doctors and a worker can return to work. Those workers comp payment rates can be governed by a contract for workers compensation medical care and a provider contract will control over the current Illinois workers comp medical fee schedule reimbursement rates.

     I suppose its much like the old saying that "you get what you pay for". Discounted prices will usually lead to higher frequency of visits on discounted medical rates for services and in the real world, the best results cost money.

   In the new 2011 Illinois workers comp reforms, PPO plans have now been introduced to limit the choice of doctor by the injured worker to a PPO network (for participating employers with contractual PPP agreements with providers) with limited exceptions for choice of outside medical provider for the injured worker.

    The 2011 compromise package is somewhere in the middle between the previous rights of injured workers to choose their own medical care and the full list of demands by Illinois business groups for slashing workers compensation costs. These new 2011 Illinois workers comp reforms represent the most major reforms in decades, and in my view, probably the largest reforms since 1975. Greg Baise, president of the Illinois Manufacturers’ Association has said “We have been fighting for this kind of reform since 1975.” as quoted in the Insurance Journal.

    For the 1st time in my career, the injured worker's choice of doctor is very limited whenever an employer participates in a new approved PPP plan. UR reports will now be admissible into evidence but telephone depositions will be available to cross examine out of state physicians, surgical hardware and surgical implant costs will be regulated to a cost plus basis, costs for prescriptions that are dispensed outside of a pharmacy or through a doctor's office will be regulated, presumptions exist against a compensable accident in cases with blood alcohol intoxication of .08 or with any evidence of drug impairment and many other numerous changes have transpired including a hugely dramatic change of all Commission staff by terminating all the Hearing officers of the current administration. Of course, some of the best and most experienced arbitrators and Commissioners are expected to be reappointed but not all will be reappointed and a fairly large reduction is expected in the number of hearing sites and downstate arbitrators. (see our subsequent post on reduction of downstate hearing sites)

     No, these new 2011 workers comp reforms do not meet all the demands by Illinois business groups for complete control of medical care, and no they don't severely slash workers benefits all the way back to the days of the company store but they do meet half way in the middle somewhere by introducing PPO plans, by introducing AMA Guides as a reference point for arbitrators in permanency awards and in cutting the length of workers' wage differential awards for injured workers with partially reduced earnings due to injury.

    Going forward with these new reforms, Illinois will be a much more "business friendly" place to encourage job growth and to encourage companies to locate here. But, there is no question that these cost reductions were borne by cutting rights of injured workers to choice of medical care and by cutting payments to doctors and hospitals by 30% in order to lower the workers compensation costs for the employers. Was the compromise worth it ?? Will there be enough savings ?? Will there be the promise of new jobs or just higher profits by insurance carriers ?? I say yes there will be savings but exactly how much will sort of depend on whether the employer participates in the new PPO preferred medical provider programs or not and on the profit margins of the insurance carriers. There are some new major changes in place to monitor profitability of insurance companies and to keep an eye on the Illinois insurance market. I am sure that insurance carriers aren't happy with these new reporting restrictions on them either but they are still lucky that their profits weren't capped as well like some of the other states. Everybody invested in the system had to "have some skin in the game" to share a portion of the cuts to quote Kwame Raoul.

   The Dept. of Insurance expects up to 10% reductions on employer insurance premiums mainly due to the 30% cuts in medical fees but I expect that savings will be much greater in the 15% or even higher range generated by the new PPO plans, especially when it comes to the construction trades and total loss of medical choice to PPO plans. New pilot programs are yet to be set up for handling workers comp rights through the collective bargaining agreements but these changes are coming. The savings on medical payments will be fairly immediate starting in September 1, 2011 when the 30% medical fee cuts kick in but savings through PPO plans and other regulations will take time for full integration and acceptance by the industry at large and time to track and report the changes.

    A pilot program is being approved by the Dept. of Labor for 2 construction trade unions that are allowed to negotiate away worker's choice of doctor in collective bargaining agreements for complete employer control of medical choice restricted only to PPO plans and will now allow for alternative dispute resolution such as going through binding arbitration, mediation or union grievance procedures instead of the Workers Compensation Commission. Details are still in formation.

    Here is our short list of the major reform package of 2011. Its not intended to be all-inclusive list but only an overview of major 2011 Illinois workers compensation reforms. 16 Major Illinois Workers Comp Reforms 2011 (slow loading .pdf)

    We will try to update or modify the summary as needed and as more details become available.

    Thank the Governor and the Democrats in the House and a bipartisan effort in the Senate for significantly cutting our Illinois workers compensation costs and for trying to attract new jobs and bring new business to Illinois. See Rich Miller's political description from the Capitolfax.com blog. He tracked the constant progress of reforms and other legislative efforts this session. As the legislative effort unfolded, I kept a constant eye on Capitolfax.com and Illinois.StatehouseNewsonline.com . Let me give a shout out to both for excellent coverage.

     There are many ways to cut costs in our system but its complicated, someone's interests will always get cut. Someone's Ox will always get gored. There is no doubt that these reforms lower Illinois workers compensation costs for employers, there is no doubt that they reduce medical provider fees by 30% and there is no doubt that they restrict the rights of injured Illinois workers to choice of medical care. Our medical providers still remain the 2nd highest paid workers comp reimbursement rates in the nation so they cannot scream too loudly about the cuts but, some of our best doctors may decide to stop treating injured workers.

    The number of claims has been dwindling by 40% due to much higher safety standards and safety enforcement but employers have continued to see a rise in premium costs. The new insurance reporting should soon tell us where and why those costs continue to go up as claims go down. Employers should soon see premium savings from their carriers. It will take some time for some of these changes to start showing up with significant savings but the Department of Insurance will request new premium advisory rates based on these changes and reforms to be announced fairly soon by September.

     For questions on changes or how it will effect employers, Illinois medical providers or injured Illinois workers, it would be wise to consult an Illinois workers comp atttorney or experienced risk manager or experienced broker or maybe even all three for a conference. If not us, then consult at least someone experienced in Illinois workers compensation. These are very significant changes despite the heavy background drum beat by the pessimists and the naysayers. Some of the new rules and forms have yet to be implemented but if they don't produce some savings, expect some heads to roll and some much heavier insurance regulation. Some of the changes require the Dept. of Insurance and the Illinois Workers Compensation Commission to adopt new rules, forms and procedures.

     Several prominent workers compensation lawyers will be giving seminars and webinars. Some of the dates for certain changes in the new provisions are staggered. Governor Quinn signed the workers comp reform bill into law on June 28, 2011.

    While we don't have a crystal ball on the subject, the structure and outline of the actual major workers compensation reform package is set out in HB1698 which recently passed Illinois House approval on May 31, 2011.

Chicago Workers Compensation Attorney -- 6-08-11

2011 Illinois Workers Comp Reform Employer PPO Plans

noreply@blogger.com (Work Comp Chicago) — Sat, 04 Jun 2011 19:17:00 +0000

6-04-11
The Illinois Workers Comp Reforms of 2011 offer major changes which are too many to list in a single post but I will try to cover the summary of major changes in future posts.

The two biggest changes under the 2011 Illinois Workers Comp Reforms are 1) reduction of the Medical Fee Schedule rates by 30% and 2) the introduction of employer PPO plans approved by the IL Dept of Insurance that attempt to limit the employer's liability for medical treatment.

A fellow workers comp attorney in Texas asked whether the Opt-Out provision for our new workers comp PPO plans was big enough to drive a truck through and I provided my answer in typical lawyerly fashion by proceeding to qualify my answer. The easy answer is the employer has "1st dibs" on medical treatment by adopting workers comp PPO plans.

The injured worker can only "Opt-Out" of the employer's PPO plan in writing and before exhausting their 2 choices of doctor in network. After using up 2 choices of physicians within the PPO network, the injured worker can only request a hearing at the Commission for a finding on the "adequacy of care" to see if they are allowed to go out of network.

the not so obvious medical treatment options following the new reforms are:

    (1) if the employer has no PPO provider, the employee retains the right to choose 2 doctors;

     (2) if the employer has an Illinois workers comp PPO plan and notifies the injured employee of the PPO plan in writing, soon after receiving the report of injury, injury treatment options are limited to the PPO plan or;

     (3) if the employee declines the PPO and Opts-out (in writing) before treating with the PPO plan, the worker automatically loses 1 choice of doctor and has only 1 choice of doctor left to go outside of network

     (4) if the employee "opts out" (in writing) after initial treatment by a PPO plan doctor, they also have only 1 choice of doctor left to go outside of network;

      (5) if the employee stays in network and uses up both choices of doctor in network, they have no doctor choices left -- they can only go outside of network upon a hearing at the Commission and after a finding of "improper or inadequate" medical care.

All medical care for an injured Illinois worker is limited in some fashion by the introduction of PPO plans in the new reforms. Needless to say this is a huge boon to Illinois medical provider networks that qualify as PPO providers through the Illinois Department of Insurance.

All workers that use up their 2 choices of doctor within the PPO plan (which I suspect will happen quite often) are severely restricted as they have no rights outside of the PPO plan absent a hearing on the adequacy of care at the Commission. I should say that injured workers can still pay out of pocket as an option at any time without expecting reimbursement but that is not going to happen all that often.

The rules for medical providers qualifying for the new PPO plans are not set out yet and the Commission has yet to develop forms for "Notice of PPO Plan" for employers to notify injured workers of the PPO plan nor are rules created yet to deal with hearings on adequacy of medical care as this package of major workers compensation reforms just unfolded on May 31, 2011 when the measures of HB1698 passed the Illinois House of Representatives to go to Governor Quinn for signature.

let me quote the relevant Opt-Out section for non-believers and nay sayers:

8a(4)(B) " …the employee may choose in writing at any time to decline
the preferred provider program,.. which …would constitute one of the two choices
of medical providers to which the employee is entitled"

Note:
1) the opt out must be in writing; and
2) even the act of "opting out" uses up 1 choice of doctor, so the injured worker has only 1 choice of doctor left after opting out of the employer's workers comp PPO plan thereby limiting doctor shopping.

As I see it -- besides the 30 % reduction on the medical fee schedule for out of network providers, the introduction of workers comp PPO plans is the biggest reform in decades and the biggest money saver for Illinois employers in the 2011 package.

All savvy employers will now sign up for PPO plans to get contract discount rates below the medical fee schedule and the injured worker loses 1 choice of doctor under the ILWC Act no matter what they do if the employer has a PPO plan.

The injured worker can certainly select 2 choices of doctor inside the PPO plan but never 2 choices outside the PPO plan. If the injured worker opts out of the PPO plan it must be in writing -- so in my reading of the changes, a lot of injured workers who go to their own family doctor outside of the PPO plan without sending a written notice "opting out" to the employer as required will find themselves coming out of pocket.

As I see it, PPO plans are a double bonus for Illinois employers -- contract medical fee discounts and restrictions on doctor shopping by injured workers -- this will likely result in big savings for Illinois employers over the present options for medical care. The reforms restrict the rights of injured workers to select medical providers but that is a political and social compromise reached to attract new JOBS and make Illinois more "business friendly" going forward. Non network medical providers and injured workers were the biggest losers this round but it could have been much worse for both.

Questions?? Call a Illinois workers compensation attorney for answers. We can gaze at our crystal ball to look for answers on the implications of the new Illinois workers comp reforms and provide individual instruction.

Chicago workers compensation attorney -- 6-04-11

Review: Complete Guide to Medicare Secondary Payer Compliance & liability claims

noreply@blogger.com (Work Comp Chicago) — Tue, 02 Nov 2010 00:07:00 +0000

11-1-10

The Complete Guide to Medicare Secondary Payer Compliance, by Jennifer C. Jordan, Editor-in-Chief (Published by LexisNexis®)
To order by phone, call 1-800-223-1940
To order online, click here

Brand new out from LexisNexis® - This is a complete Guide Book for achieving MSP compliance in workers comp and liability settlements. This book combines a rare industry insider's review of the statutory changes as seen by MSA industry insider, Jen Jordan, General Counsel at MEDVAL LLC, and delivers current relevant case law with case summaries that review where we are at today. I recently received and reviewed parts of an early draft edition and thoroughly enjoyed the reading.

Jen Jordan has been involved in the trenches of structured settlements for workers comp and MSA (Medicare Set Aside) submissions and an active participant in following all the "Town Hall" conferences that CMS has been holding with industry participants regarding the new MSP claim reporting requirements for Workers Comp, Liability and non-group health plans.

I must admit that I have been a longtime reader of the MedVal Blog for updates on MSP developments and MSA requirements. I have personally tracked all the major MSA settlement companies and many of their websites for any MSA updates or information on MSP compliance over the past 8 years. I was always searching for any new consensus of opinion on MSA submissions and MSP compliance. My lengthy search had covered the numerous twists and turns in both the case law and the changes in CMS Memos dealing with workers comp. I also personally reviewed all the changes in the actual wording of the statutory language in the Federal Regulations. This Guide Book saves the reader from my long and somewhat painful search.

This new Guide Book on MSP Compliance and MSA submissions exceeds all of my research efforts to date and delivers a comprehensive beacon of light in an otherwise dark and murky lagoon of disjointed MSA/MSP written information. I have read many of the conflicting or modified answers in Memos issued by CMS since 2001 and read many of the changes in the statutory MSP language and reviewed multiple changes in the MSP claim reporting requirements that had left me and a lot of other people frankly scratching their heads.

Finally, someone delivers a clear, concise reading in this area, with some definitive answers for both lawyers and claims specialists and accurate reporting dealing with MSP compliance and MSA allocations with all of the necessary resources found in one place. This book is a "must read" for anyone responsible for MSP compliance and no, I am not being paid for this endorsement although I will disclose that I recently received a copy of the book for my work in reviewing and providing feedback on early outlines and case law summaries.

Along with a handful of other Illinois workers compensation attorneys, I have ardently followed and analyzed all the CMS Internal Memos and alerts from Medicare. I must admit that I have even used the "Ask Jen" feature on MedVal’s Blog to ask some rather tough questions on my concerns for large Illinois workers compensation settlements with rather large MSA structured settlements that were not exactly covered by any of the reported case law decisions nor answered by any of the CMS Memos. Thankfully, Jen Jordan had provided me with some very direct answers on my tough questions and I have been a faithful fan of the MedVal Blog by her and Ryan Roth ever since.

As everyone knows, CMS has been morphing the Liability and Workers Comp MSP claim reporting requirements that will take effect for carriers and self insureds as of January 1, 2011. This new Guide Book on MSP compliance couldn't be delivered anymore timely or anymore helpful.

And for all those out there that think MSA allocations have nothing to do with Liability settlements, think again. Why on earth would the government mandate the reporting of all liability claims involving Medicare beneficiaries all across the nation if there wasn't an intended purpose? Medicare intends on denying all future Medicare payments for any treatment related to injuries received that are the subject of a liability law suit unless there is an accurate and adequate consideration (read future medical allocation and funding) of “Medicare's interests” at the time of the settlement.

Liability lawyers from now on are going to have to shy away from the standard boiler plate language in a "General Release" and modify their settlement language to suit the circumstances where their client is a Medicare beneficiary or soon to be expected Medicare beneficiary. Jordan's chapter on Liability Settlements is a "must read" for every plaintiff and defense lawyer drafting releases with some practical tips on possible liability MSA applications and even some suggested modified "Release" language.

While liability settlements presently do not go through any of the MSA prior submission process established for workers comp, CMS totally intends on tracking all liability settlements to ensure repayment of their Medicare liens for "conditional" payments made and to prevent any double compensation where future medical monies have already been received in a law suit. The Philadelphia office for CMS has reportedly already hired someone to review MSA liability settlements. That alone should tell you something. In situations of an inadequate recovery due to limited insurance coverage or in situations of incomplete compensation for injuries due to liability issues, this book provides some very practical suggestions for post settlement hearings and findings by the Court as well as modified "Release" language.

Liability plaintiff's attorneys heretofore have had to make an assessment whether to even take a personal injury client's case if the Medicare "conditional" lien payments were expected to exceed the insurance coverage available because Medicare's lien repayments could in fact leave their client with nothing left for compensation for their injuries.

However, there may be some new light shed at the end of that dark tunnel with a recent decision reported by Jen Jordan on the LexisNexis Workers Compensation Blog. See her summary on the opinion in Bradley v. Sebelius recently decided out of Florida that was published on September 29, 2010. Jen's analysis of the Court's opinion is that it supports a position for "apportionment" in Medicare lien repayment cases that settle for less than full value of the claim and/or contain compensation for non-medical claims. Liability lawyers might very well want to read both the summary and the actual decision and continue to read Jen Jordan's further analysis on the LexisNexis Workers Compensation Blog as we wait for some final word on the situation.

Importantly, this new MSP book provides guidelines on accurate MSA submissions for workers comp settlements to prevent over funding of any MSA submissions. It is extremely important for insurance adjusters or lawyers to note and define injuries for which workers comp liability is accepted and state any future medical or body parts that are totally disputed (with the basis for the dispute documented of course) when submitting their MSA proposals and in drafting their settlements. Similar considerations also apply when making any future medical allocations for Medicare’s interests in liability settlements.

This brand new book from LexisNexis will help industry claims people and lawyers alike take control of their settlements by explaining how to:

• comply with MSP reporting requirements and avoid penalties
• avoid pitfalls and delays under CMS’ policies and procedures
• identify which cases to actually submit for CMS review
• achieve better CMS approval rates and avoid overly inflated MSAs
• defend less costly MSA allocations for future medical expenses
• avoid rejection of MSA proposals for inadequate drug information
• understand MSA evaluations and the options for funding MSAs
• and determine when MSAs should be used in liability settlements

That pretty much covers a lot of ground in one complete Guide Book. Twice a year updates are already anticipated as well as more current update coverage on both on the MedVal Blog and on the LexisNexis Workers Compensation Law Community powered by Larson’s.

Jen Jordan will personally be available at the upcoming National Workers Compensation Conference & Expo in Las Vegas, Nov. 10 thru 12th. For more information on the conference see here.

I want to congratulate both Jen Jordan and her editor, Robin Kobayashi, of LexisNexis for an outstanding job on delivering a thoroughly accurate presentation of MSP/MSA guideline information on what has been a constantly morphing and moving target.

Mistakes in this MSP/MSA area can literally cost tens of thousands of dollars and the book is moderately priced at just $179 dollars for the 2010 Edition. To order by phone, call 1-800-223-1940. To order online, click here

Chicago workers compensation attorney -- 11-01-10

Medicare Mandatory Reporting Timelines Revised and Quick Reference Guide

noreply@blogger.com (Work Comp Chicago) — Thu, 01 Apr 2010 03:00:00 +0000

3-31-10

March 29, 2010 CMS issued a Revised Quick Reference Guide for MMSEA Section 111 Registration (updated Oct. 7, 20131) For Responsible Reporting Entities. But note that CMS cautions everyone that you must read the full updated User Guide.

Q: Why does Medicare supply a 43 page "User Guide" to mandatory claim reporting?
Answer: because the full updated User Guide to Mandatory Reporting (Ver 4.0) updated (Oct. 7, 2013) takes up 463 pages broken down into .pdf sub-parts on the CMS website.

It is anticipated that yet even more changes will be forthcoming but for the most part, most of the gross outline of the claim reporting process, the required data elements and the main provisions have taken shape. There have been substantial changes in this updated User Guide edition in response to industry concerns most notably in regard to who is considered to be a reporting entity (RRE) and in dealing with companies that have a deductible in their workers comp policy.

More CMS Town Hall tele conferences are scheduled for later this year up through June 30,2010 to address even more questions and more industry concerns. Because this changing area of law and the actual requirements are still unfolding, either check with an experienced Illinois workers compensation attorney with questions on where to look for answers or hire a specialized consultant in Medicare Secondary Payor requirements that can closely monitor this specialized area for precise reporting compliance.

If you have reporting responsibilities at your company, you should continue to monitor the CMS page on MMSEA very closely for any new developments and monitor the CMS page for Liability Insurance and Workers' Compensation Reporting for the most up to date information.

Chicago Workers Comp Attorneys -- 3-31-10

Illinois Medical Fee Schedule FAQ and Guidelines 2010

noreply@blogger.com (Work Comp Chicago) — Wed, 03 Mar 2010 13:00:00 +0000

3-3-10

The Illinois Workers Compensation Medical Fee Schedule has been supplemented with answers to FAQs generated from recent fee schedule seminars around the state. As a result of common questions posed by the medical community and workers compensation payers, the Commission issued updated Medical Fee Schedule Instructions and Guidelines ( 1/25/10) for treatment occurring after 2/1/09 and they issued a new list of common Medical Fee Schedule FAQs (1/25/10) that were generated directly out of the seminars.

Naturally, the fee schedule generated a lot of interest from hospitals, treating doctors and the health care providers from the community at large. I share the above links for obtaining updated information that may help workers compensation health care professionals in answering some of their more common questions.

If your representatives were unable to attend the official medical fee schedule seminars, the Medical Fee Schedule Power Point presentation can be found here.

Many answers to medical bill questions were already posted on the Illinois Workers Compensation Commission web site found at “Frequently Asked Medical Questions” . Whenever providers or payers have a medical questions, they are encouraged to check this page first.

These detailed billing questions are often outside the normal knowledge of Illinois workers compensation attorneys as they often relate to very specific billing and payment issues. For example, the updates address correct billing modifiers for bilateral procedures. Not your usual type stuff. While our Chicago workers comp attorneys may not know the answer, we often know where to look or who to ask. As yet another uncommon example, the MS-DRG crosswalk is available online here but the Illinois Workers Comp Fee Schedule incorporates the new MS-DRG hospital inpatient codes for treatment after 6/30/09.

We were just recently asked by a physician at what point can they start charging statutory interest at 1% per month on the unpaid balance of their bills?

That answer is contained in Question # 61 in the updated FAQs. Answer: The medical providers can start charging interest on unpaid amounts after 60 days from the date that the workers compensation payer receives "substantially all of the information necessary to adjudicate the bill".

The exact data elements are not specified in the fee schedule but a workers compensation carrier can certainly argue that interest does not apply if customary billing information is missing. All normal relevant information should be completely filled out on the standardized bill.

The Commission acknowledges that the medical fee schedule guidelines and FAQ cannot address all of the possible questions that might arise in practice but they hope that the parties will continue to use common coding procedures and follow common reimbursement practices to fill in any of the blanks that are not explicitly specified in the guidelines or instructions. You can email your remaining fee schedule questions to feeschdquestions.wcc@illinois.gov

If a dispute continues to exist after reviewing all of the answers provided, the only way for a medical provider to get an official ruling from the Commission is for the employee's attorney or for the employer's attorney to take the issue to trial before an Arbitrator. That arbitration decision can then be subject to an appeal for further review by a panel of the Commissioners who will decide disputed cases for the official ruling of the Commission.

We hope the above links will provide helpful answers our doctors, medical providers and payers while the industry continues to adapt to the new fee schedule changes, requirements and procedures.

Chicago Workers Compensation Attorneys -- 03-02-10

Mandatory Claim Reporting Date extended to Jan 1, 2011

noreply@blogger.com (Work Comp Chicago) — Fri, 19 Feb 2010 13:58:00 +0000

2-19-10

CMS MIR update alert advises workers' comp and liability RREs that the compliance date for claim reporting is now extended from 4-1-10 until 1-1-11, effective immediately.

All RREs should now be registered with the COBC, and either in or preparing for file testing. Data testing may continue during 2010, as needed.
All data exchange testing will be completed by December 31, 2010. RREs that have completed file data exchange testing in place are encouraged to proceed to claim reporting data exchange status.

CMS will post an updated "Section 111 NGHP User Guide" and a number of new Alerts during the week of February 22. CMS is expected to post steps that carriers and self insureds can take to assure their ongoing compliance with the Section 111 claim reporting requirements.

Chicago Workers Compensation Attorney -- 2-19-10

Back Due Child Support Ordered Paid out of Workers Comp Settlement

noreply@blogger.com (Work Comp Chicago) — Sun, 07 Feb 2010 21:42:00 +0000

2-07-2010

Section 21 of the Illinois Workers Compensation Act (820 ILCS 305/21 (West 2008)) prohibits all liens on Illinois workers compensation arbitration awards or settlements. This section specifically provides in pertinent part:

“No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, , penalty or damages."

Under the law, very few liens are allowed on Illinois workers compensation settlements or awards. There are exceptions of course for Public Aid liens and Medicare’s lien for past related payments but generally the purpose of prohibiting liens in Illinois workers compensation is to protect the injured worker from outstanding claims to ensure that the family has sufficient money to support themselves. However, at least one case now finds that Illinois workers compensation settlements are not immune from claims for past due child support.

In a recent case of Illinois Dept. of Healthcare and Family Services v. Bartholomew (4th Dist. 12/8/09) an unmarried father was already under a wage garnishment order against his paycheck for $428 / month for child support and $85 per month for back due child support. In a further administrative order, he was prohibited from "dissipating" his workers compensation settlement of $175,000. The father agreed that the mother should receive 20% of the workers comp settlement money to pay for his current child support obligations but he contested the lien of about $9,000 claimed in back due child support and interest.

This case confirms that the Withholding Act, 750 ILCS 28/15 paragraph (d), considers “income” to mean any source of periodic payment, including workers compensation payments or settlements. Further, Section 20 (c) (3) specifically allows for withholding of “income” for past due child support.

If the workers compensation settlement is for payment for the loss of a hand, foot, leg or other injury, that money may not be considered as “income” for other purposes since it is not "earned income" but really compensation for the loss or partial loss of the worker's body parts. But here, the Illinois General Assembly and our legislators have established that it is our public policy to withhold money from statutorily defined "income" to ensure that all support judgments are enforced by all available means.

Chicago Workers Compensation Attorneys -- 02-07-10

Illinois Temporary Disability Awarded After Termination for Cause

noreply@blogger.com (Work Comp Chicago) — Wed, 03 Feb 2010 15:35:00 +0000

2-03-2010

The Illinois Supreme Court recently upset many Illinois defense attorneys and insurance claims professionals in a hotly contested decision ruling that the employer owes temporary disability benefits even after a "firing for cause" where the worker is on light duty restrictions and has not yet medically stabilized or reached MMI.

This case has been the subject of some spirited discussion on the Workers Compensation Forum on LinkedIn with worries that injured employees can now start fights, threaten supervisors or even commit crimes leading to their valid discharge and still be able to collect temporary total disability compensation.

For background, an Illinois construction worker, Jeff Urban, was working light duty following a legitimate heat stroke injury and returned to work on light duty when he was allegedly fired for writing religious graffiti on a store room shelf. (yes, this was the subject of an earlier post; Carpenter fired for Religious Graffiti).

It turns out that an ugly argument had erupted over an overpayment in a light duty check weeks following the graffiti incident. Although the worker had voluntarily reported the payroll error to the payroll department, he was confronted in a heated exchange about cashing and keeping the overpayment. The argument escalated when the worker called the local police to the job site to file charges of harassment against an administrative assistant whereupon he was terminated shortly thereafter.

The employer based the termination on defacement of property for writing the religious graffiti on shelves in a store room. The defacement of property would normally be a valid cause for firing in Illinois, but it came out that the graffiti occurred weeks earlier and other workers that scribbled graffiti were not similarly fired. The firing really only occurred after the heated argument over the overpayment in the light duty check which was in fact a payroll error. All temporary disability benefits were terminated following the argument and the employee's termination.

At trial, an Arbitrator denied temporary benefits after termination. The Commission however, reversed and awarded temporary disability benefits focusing on the fact that the injury had not yet stabilized nor reached MMI. They found that the worker was still temporarily disabled from his regular duty job despite the employer's argument about denying benefits over a termination for cause.

In a case of first impression, the Illinois Appellate Court considered the entitlement of a worker to temporary disability pay, or actually temporary partial disability pay, where the worker was working under light duty restrictions but fired for an unrelated cause. Interstate Scaffolding v. Workers Compensation Commission (Oct. 20, 2008, 3rd Dist App.)

The Appellate Court naturally 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 had centered on whether the departure from light duty employment was voluntary or volitional on the worker's part or whether departure was involuntary due to the work related injury medical disability.

In reviewing cases from other jurisdictions provided by Larson's, the Interstate Appellate Court noted that some jurisdictions do 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 however were also noted to uphold the right to collect benefits after a firing while on light duty employment only if the employee could prove that the inability to find other employment was 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)

The Appellate Court found that there was no evidence that the employer terminated the worker merely to avoid paying disability benefits, but rather that it was the worker's own volitional conduct in defacing company property that was the real cause for discharge. The employee would have continued to receive benefits until medically stabilized but for his own misconduct. Accordingly, a divided Appellate Court found temporary benefits after the termination were properly denied.

You can contrast this decision with other recent Illinois Commission decisions 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.

The Illinois Commission 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 then denied benefits entirely during a light duty release to return to work arguing that the safety rule violation termination 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 they awarded entitlement to temporary disability benefits.

Our Illinois Supreme Court considered the question of an employee's "discharge for cause" as a basis for denying temporary disability benefits. The Court looked to the law found in the Illinois Workers Compensation Act and found no statutory authority to justify denial, suspension, or termination of TTD benefits based upon an employee's discharge by his employer for unrelated causes. Interstate Scaffolding v. Workers Compensation Commission. (1-22-2010, Docket # 107852)The "test" according to the Court is, was and always has been whether the employee "remains temporarily disabled" as a result of the work related injury and "whether the employee is capable of returning to the work force."

They noted that the Illinois Workers Compensation Act supports suspension or termination of disability benefits for (1) refusing reasonable medical treatment, (2) for failing to cooperate with rehabilitation efforts or (3) for refusing work which falls within the treating doctor's restrictions however they concluded that no statutory basis exists in the Act for terminating benefits following an unrelated discharge for cause.

The Illinois Supreme Court was emphatic in stating that Illinois is an employment "at-will" state and an employee may be discharged for any reason or no reason at all, but whether the discharge is for a valid cause or whether the discharge is somehow discriminatory are simply matters foreign to Illinois Workers Compensation. The entitlement to ongoing temporary disability compensation is wholly a separate issue and not dependent upon the propriety of the discharge.

There are plenty of laws that govern whether a termination is proper or wrongful but that issue is not necessarily for the Commission to decide. Its their given job to decide if someone is temporarily disabled from a work related injury and not the propriety of the firing.

According to the Supreme Court, where an employee has been fired for unrelated cause by his employer, the test for deciding entitlement to ongoing TTD benefits remains whether the employee has medically stabilized or whether the employee continues to show that he is temporarily totally disabled from regular work.

Since the Commission found that this employee proved that he remained temporarily totally disabled from regular work as a result of his work injury and he proved that he had not yet reached maximum medical improvement, the Commission's award of ongoing temporary disability benefits was sufficiently supported by the evidence even in the face of an alleged "termination for cause".

This decision is not to say that the Illinois Workers Compensation Commission won't deny temporary disability benefits in the future where the facts demonstrate that some volitional act of the employee removes him or her self from light duty employment but rather, that a discharge for cause is not a basis for automatic suspension, denial or termination of temporary total disability benefits under the Illinois Workers Compensation Act

Chicago Workers Compensation Attorney -- 2-03-10

Illinois Construction Workers Presumed to be Employees

noreply@blogger.com (Work Comp Chicago) — Sat, 05 Sep 2009 13:00:00 +0000

9-05-09

New laws apply to employers and contractors in the construction industry eff., January 1, 2008. Illinois Attorney General Lisa Madigan is now prosecuting non-compliant employers under the new law. All construction workers working for construction contractors after January 1, 2008 are presumed to be employees of the contractor by law unless they meet the specific exceptions listed in (b) and (c) below as set out in Section 10 of the new Employee Classification Act.

(820 ILCS 185/10)
Sec. 10. Applicability; status of individuals performing service.

(a) For the purposes of this Act, an individual performing services for a contractor is deemed to be an employee of the employer except as provided in subsections (b) and (c) of this Section.

(b) An individual performing services for a contractor is deemed to be an employee of the contractor unless it is shown that:

(1)the individual has been and will continue to be free from control or direction over the performance of the service for the contractor, both under the individual's contract of service and in fact

(2) the service performed by the individual is outside the usual course of services performed by the contractor; and

(3) the individual is engaged in an independently established trade, occupation, profession or business; or

(4) the individual is deemed a legitimate sole proprietor or partnership under subsection (c) of this Section

(c) The sole proprietor or partnership performing services for a contractor as a subcontractor is deemed legitimate if it is shown that:

(1) the sole proprietor or partnership is performing the service free from the direction or control over the means and manner of providing the service, subject only to the right of the contractor for whom the service is provided to specify the desired result;

(2) the sole proprietor or partnership is not subject to cancellation or destruction upon severance of the relationship with the contractor;

(3) the sole proprietor or partnership has a substantial investment of capital in the sole proprietorship or partnership beyond ordinary tools and equipment and a personal vehicle;

(4) the sole proprietor or partnership owns the capital goods and gains the profits and bears the losses of the sole proprietorship or partnership;

(5) the sole proprietor or partnership makes its services available to the general public or the business community on a continuing basis;

(6) the sole proprietor or partnership includes services rendered on a Federal Income Tax Schedule as an independent business or profession;

(7) the sole proprietor or partnership performs services for the contractor under the sole proprietorship's or partnership's name;

(8) when the services being provided require a license or permit, the sole proprietor or partnership obtains and pays for the license or permit in the sole proprietorship's or partnership's name;

(9) the sole proprietor or partnership furnishes the tools and equipment necessary to provide the service;

(10) if necessary, the sole proprietor or partnership hires its own employees without contractor approval, pays the employees without reimbursement from the contractor and reports the employees' income to the Internal Revenue Service;

(11) the contractor does not represent the sole proprietorship or partnership as an employee of the contractor to its customers; and

(12) the sole proprietor or partnership has the right to perform similar services for others on whatever basis and whenever it chooses.

(d) Where a sole proprietor or partnership performing services for a contractor as a subcontractor is deemed not legitimate under subsection (c) of this Section, the sole proprietorship or partnership shall be deemed an individual for purposes of this Act.

(e) Subcontractors or lower tiered contractors are subject to all provisions of this Act.

(f) A contractor shall not be liable under this Act for any subcontractor's failure to properly classify persons performing services as employees, nor shall a subcontractor be liable for any lower tiered subcontractor's failure to properly classify persons performing services as employees.

(Source: P.A. 95-26, eff. 1-1-08.)

If an employer/ contractor miss-classifies a worker as an independent contractor in violation of the new law, the Attorney General of Illinois can and will prosecute and the courts can and do assess fines, stop work orders or other remedies. The Illinois Department of Labor will also notify other State agencies such as the Department of Employment Security (unemployment taxes), the Department of Revenue (income taxes for State & Fed) and the Illinois Workers’ Compensation Commission (Workers comp insurance compliance penalties) who are all then required to review and check the contractor’s compliance with each of their own respective laws. Contractors found in multiple violations can be in a whole world of hurt.

Recently, Attorney General Lisa Madigan settled claims against 5 Chicago area construction firms that were accused of falsely classifying their employees as independent contractors in violation of the new law rather than as employees.

The settling defendants are:

Jerry Ryce Builders, Inc. and Jerry Ryce Masonry, Inc., owned by Boguslaw Omielan and operating out of 3801 South Archer Chicago, Ill.; and
J S Masonary, Inc., JS Masonry & Tuckpointing, Inc., and JS Masonry & Stone, Inc., owned by Jan Staszel and operating out of 9001 W. Deerwood, Palos Hills, Ill.

The 5 companies have agreed to pay more than $79,000 in fines. The settlement agreement forbids the companies from participating in public construction projects for the next 4 years.

“This agreement requires these five companies to legally recognize the hard-working men and women they employ by no longer denying them the benefits to which they are entitled,” Madigan said. “Illinois businesses, especially those involved in the construction trades, should be aware that this practice – which harms workers and puts honest employers at a competitive disadvantage – will not be tolerated.”

The Illinois Workers Compensation Commission will also take notice of the new law when looking at independent contractor defenses in workers compensation construction injury claims involving actual or claimed employees. There seems to be a recent trend at the Commission to favor employment relationships in cases for injured workers in both trucking and the construction industry.

To review construction accident work injury claims, contact an experienced Illinois workers compensation attorney. The construction area and the rights of the parties are often confusing. Often, a loaned/borrowed employment relationship may exist in a construction setting which may be governed by the subcontract indemnification agreements or by the agreements for primary liability for workers compensation claims or other such hold harmless language in the construction contracts.

Chicago Workers Compensation Attorney -- 9-05-09

Illinois Workers Compensation Medical Fee Schedule Seminars

noreply@blogger.com (Work Comp Chicago) — Fri, 21 Aug 2009 15:18:00 +0000

8-21-09 The Workers Compensation Commission will hold public seminars for payers and providers to review the new Illinois Workers Comp Medical Fee Schedule for injury related medical care on or after Feb.1, 2009. (Instructions and Guidelines for Treatment ) Payer and Provider Seminars are now scheduled: Mount Vernon (10/13/09), Collinsville (10/14/09), Springfield (10/28/09), Chicago (11/3 and 11/4/09), Peoria (11/10/09) and Rockford (11/17/09) see dates and locations and registration information. The Illinois Workers Comp Medical Fee Schedule sets forth maximum limits for 1) ambulatory surgical centers 2) hospital outpatient surgery, radiology, laboratory, physical medicine and rehabilitation services and 3) new rates for specialized rehabilitation hospitals. Maximum payment rates are now set as the lesser of 1) the listed Fee Schedule amount 2) the actual amount charged or 3) the contract "negotiated" rate in provider contracts. An existing contract will control over amounts in the new fee schedule. Interest charges may apply for late payment after 60 days but only after providers supply the necessary minimum information required. For assistance call our office at (312) 541-0049 or email us at beb@workcomp-chicago.com Chicago Workers Compensation Attorney -- 8-21-09

Mandatory Insurer Reporting User Manual Released 8-04-09

noreply@blogger.com (Work Comp Chicago) — Tue, 18 Aug 2009 13:43:00 +0000

8-18-09

We often report on important developments involving Medicare coordination with Illinois workers compensation claims. For those following the Mandatory Insurer Reporting requirements (MIR), the Centers for Medicare & Medicaid Services (CMS) released an updated Liability and Workers Compensation Insurance User Guide Version 2 dated 8-04-09. The 225 page document is offered to help insurance carriers and administrators understand upcoming claim reporting requirements for cases involving Medicare beneficiaries.

CMS also released an "Alert" dated 7-31-09 to define who is required to report under the new law -- that is anyone that CMS terms a Responsible Reporting Entity (RRE). The definition essentially boils down to any party that is responsible to pay the claim which may include the members of insurance risk pools, self insureds companies, any company with a deductible and workers compensation insurance carriers.

This document is in draft only and is subject to revision after additional public comment. It attempts to solve the double reporting problem with companies that keep deductibles or self insured retentions (SIR) and tries to define exactly who or what entity is responsible for the claim reporting.

Chicago Workers Compensation Attorney -- 8-18-09

Illinois Workers Compensation Medical 2 Doctor Rule

noreply@blogger.com (Work Comp Chicago) — Mon, 10 Aug 2009 17:48:00 +0000

8-11-09

Illinois workers compensation allows injured workers to have a choice of picking two doctors for treatment. Hospital emergency care does not count as a choice of doctor but after that, if you start medical treatment with any physician, it is going to be considered as using one of your two choices for a doctor.

Your initial doctor can refer you to as many specialists or therapists as are necessary to evaluate and treat your injuries. But say you have a disagreement with your 1st doctor or you feel not enough is being done to treat your injury. Section 8(a) of the Illinois Workers Compensation Act allows for a 2nd independent choice of doctor at the employer's expense under workers compensation. A third choice of doctor will not be paid for as a medical expense under Illinois workers comp to prevent doctor shopping.

All injured workers should be aware of the two doctor rule or they may find themselves paying out of pocket for medical care that should have been covered in workers compensation medical benefits. And, an Illinois workers compensation attorney will not be able to force payment of those medical bills because by law an employer is not responsible for a 3rd choice of doctor.

For a review of basic rules and Illinois workers compensation benefits, see our web site for a short article outlining basic benefits. A recent court case also reinforces the two-physician rule where a worker received some free acupuncture, it did not count as a choice of physician. See the Appellate Court's most recent decision on the 2 doctor rule at Comfort Masters (May 2008).

For further questions concerning medical treatment or workers compensation benefits contact a Chicago Workers Compensation attorney for answers and assistance. Our Attorneys at WorkComp Chicago have handled Illinois work injury claims for over 20 years with a 98% overall success rate. Aggressive Illinois workers compensation attorneys with a strong record of success in workers compensation settlements, trials and appeals.

Chicago Workers Compensation Attorney 08-11-09

Illinois Truckers as Independent Contractors or Employees; Nature of the Business Test Matters

noreply@blogger.com (Work Comp Chicago) — Mon, 10 Aug 2009 17:35:00 +0000

8-10-09

Illinois adopted a stricter test in 2007 that favors classifying workers as an employee rather than as an independent contractor. No single factor determines whether a worker will be classified as an employee or an independent contractor but the factors that will be considered are as follows:

whether the employer dictates the person's schedule
whether the employer pays the person hourly
whether the employer withholds taxes
whether the person can be discharged (fired) at will
and most important whether the employer may control the manner in which the work is done

Every case will of course be looked at individually but the courts will now look at whether the worker's services form a regular part of the employer's general business or whether their duties are part of their own separate business. If that's so, many workers will now be presumed to fall under workers' compensation coverage like in the case of many truck drivers and construction workers who are regularly and wrongly named as independent contractors.

There is a growing trend to classify owner-drivers of trucks as employees when they work continuously for a company and that driving forms an integral part of the employers business. By the court looking to the "nature of the business" test more workers who are labeled independent contractors will be treated as employees for workers compensation and be entitled to Illinois workers compensation benefits.

The Illinois Supreme Court announced the new "integral nature of the business" decision in Roberson (May 2007)

Many Illinois workers are wrongly classified as independent contractors to save the employer from workers compensation premiums and withholding taxes. Injured workers should contact an Illinois workers compensation attorney to determine whether they should be covered by Illinois workers compensation.

For questions call a Chicago workers compensation attorney for answers and assistance with a claim for benefits at info@workcomp-chicago.com.

Chicago Workers Compensation Attorney 8-10-09

2008 Annual Report Illinois Workers Compensation Commission

noreply@blogger.com (Work Comp 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

noreply@blogger.com (Work Comp 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

noreply@blogger.com (Work Comp 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, modified 7/9/09) viewed the hip check case more like a “ Good Samaritan” case, in that he was coming to the aid of a female coworker. The injured worker testified he bumped the machine with his shoulder rather than an actual hip check and it was further noted that the employer knew that the machine was broken. In this instance, the Appellate Court said that the Commission could find it compensable as long as the actions were reasonably 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 reasonably foreseeable.

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 more 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

noreply@blogger.com (Work Comp 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.

(8-23-09) Update: PMSI records significant increase in MSA allocations under new prescription drug guidelines

Chicago workers compensation Attorney -- 6-20-09

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

noreply@blogger.com (Work Comp 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