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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The combined SB 904 and HB 3452 provision will read: 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

Marijuana Testing Doesn’t Yet Match Blood Alcohol Testing

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

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

Medical Marijuana in Your Work Sites

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

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

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

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

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

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

Recreational Marijuana

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

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

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

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

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

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

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

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

11-12-2018; SB 904 Continues To Loom As a Litigation Disaster--Can The IWCC Provide A Better Path?; Kevin Boyle reports Single Hearing Member (WC Judge) Change in IN, and New 2018 2d Injury Fund

Synopsis: SB 904 Continues to Loom as an IL WC Litigation Disaster—Can the IL WC Commission Provide a Better Path For Docs and Hospitals to Get Paid Timely and in the Right Amount?

 

Editor’s comment: Under the former Rauner Administration, our IL Legislature passed several anti-business employment law bills for Governor Rauner's desk. Most notable is SB 904 (Hastings/Hoffman). This challenging and unprecedented legislation makes numerous changes to provisions regarding payment of worker's compensation medical bills.

 

Then-Gov. Rauner agreed with the IL State Chamber’s accurate assessment of SB 904 that Illinois' workers' compensation law needs revision to reduce growing friction and cacophony between IL employers, WC insurers and medical providers. A major class action on this topic is currently pending.

 

Our concern is SB 904 would further increase litigation and concomitant employer costs in a system where Illinois already has what the Stat-Rats at WCRI opine is the second highest WC medical fee schedule in the entire U.S. Then-Governor Rauner's amendatory veto provided a path to righteousness—give it to the IL WC Commission to provide some reasonable balance between employer, WC insurer and medical provider interests. 

 

IL Employers and WC insurers have identified numerous problems with SB 904 resulting in the Illinois Chamber's most stringent opposition. For one simple example, SB 904 allows a WC medical provider to pursue collection of their bills before a Circuit Court judge prior to any determination of whether an injury occurs in the workplace by the Arbitrator or Workers Compensation Commission. It is possible the Circuit Court judge assigned would have to hold a mini-WC-arbitration where Claimant, the medical provider, the insurer and/or the employer would have to all appear via counsel and state their claims. Court costs to just to file such claims would be between $200-400 per claim in Cook County. The Sheriff or process servers would also have to be paid. Court appearance fees are at least $200+. There is no limit on what any of the attorneys for the four parties can charge, like there is in a traditional IL workers’ comp proceeding—a Claimant lawyer representing a Petitioner in such a proceeding could charge $300-500 or more per hour.

 

In my reasoned legal view, if Claimant wasn’t represented and a Circuit Court judge found the claim to be non-compensable and denied the asserted medical bill, “res judicata” or what is also called “issue preclusion” would attach. In short, Claimant’s workers’ comp claim might be barred without the IWCC ever hearing it. Everyone might find the Circuit Court rules aren’t as nice to the parties as the IWCC can be.

 

If SB 904 is enacted, Illinois would be the only state in the country allowing such a “double-venued” WC hearing procedure. I firmly believe this change alone will add dramatically more WC litigation into an overly litigious system. I am also sure SB 904 would slow down claim adjudication for injured workers and make all of it confusing and uncertain—the IWCC exists to streamline WC issues and disputes. Finally, I assert SB 904 would cause IL workers' compensation costs to spiral.

Please Remember I Want/Demand IL Doctors and Hospitals Who Provide WC Care to be Paid Timely and in the Correct Amounts—I just want that adjudicated where it has been adjudicated since 1909—the IL WC Commission.

 

Take a look at this link from ISMS or the IL Medical Society: https://www.team-iha.org/files/non-gated/advocacy/workers-compensation-payments.aspx

 

It does accurately outline their valid concerns and demand for overriding then-Governor Rauner’s amendatory veto. I join with ISMS in wanting answers and solutions to their many appropriate issues. I have already openly written and asked the IWCC managers and consultants and everyone to rapidly come up with a plan to parrot Indiana or Wisconsin or some other WC system that insures doctors and hospitals are timely paid and paid in the right amounts. I remain amazed to hear nothing is being discussed at the many boards that consult with the IL WC Commission members and interested legislators. Please get going, slowpokes!!!

 

What is happening in this State is shameful when I hear of approved care by an insurer that is then cut and cut and paid in amounts considered comical by our great doctors and similarly situated medical care-givers. I join with the august and knowledgeable members of the IL Appellate Court in castigating those who are responsible for such actions.

 

I am sure the gurus at the Illinois Chamber have communicated to the proponents of SB 904 their strong willingness and commitment to negotiate changes to IL WC law to address their concerns in a manner that will not adversely impact Illinois employers and WC insurers. To date, their offer has been rejected without any consideration of finding solutions at the IWCC and in the IL WC Act and Rules. The State Chamber’s exhaustive and accurate analysis can be found at this link: State Chamber on IL SB 904.

 

Please consider joining the IL State Chamber that is out on the point for IL business. For information, go to www.ilchamber.org.

 

Please contact your legislative rep on this debate over IL SB 904—the veto session starts TOMORROW!!

 

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

 

 

Synopsis: “Here Comes The Judge.” Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

 

Editor’s comment: Kevin Boyle reports there is a Single Hearing Member (WC Judge) Change in Indiana, and New 2018 Second Injury Fund Status Report and Forms Available.

The Indiana WC system will soon have a new Single Hearing Member (aka “judge”), replacing Krysten LeFavour, who handled the southeastern part of Indiana.

IN WC Judge replacements don’t happen very often here, and we only have six judges anyway, so this change could be very important.

Please note the “judges” handle both hearings and combine to handle appeals—IN doesn’t have lots of hearing officers, unlike many other states.

No replacement has been named yet and the southeast region is being temporarily handled by Single Hearing Members/judges Dan Foote and Diana Parsons. I’ll keep you posted when the new person is named.

We join with others to thank Judge LeFavour for your time at the IWCB.

Also, the IWCB just posted the new IN 2018 Second Injury Fund Status Report and the Second Injury Forms are now available.

The 2018 Assessment, certificates for insurers and self-insureds have been updated. If you’d like copies, let me know.

IN WC remains efficient and effective.

If you want an IN defense lawyer who covers the entire State and knows the system and works hard to close your files, contact Kevin Boyle at kboyle@keefe-law.com

11-6-2018; Election Special; Dreaded Consecutive IL WC Claims--Who Knows Who Owes and more

Synopsis: 2018 Midterm Election Special from KCB&A/Gene Keefe

 

Editor’s comment: Lots of things are on the line. As I advised in weeks past, JB Pritzker is way ahead in the polls. Barring a major upset, he is going to be our next IL Governor. He has vowed to

 

  • Increase state income taxes “temporarily”—sure… Once, in place, income taxes aren’t going to be cut so long as our troops in Springfield don’t dramatically reform their spending habits;

  • Work to pass a graduated income tax for an unknown new levy in about two years. It will require a constitutional amendment (Try to imagine anyone amending the IL Constitution to limit fake gov’t pension!);

  • Make marijuana legal at the State level—I am sure this is to try to get the same level of tax income folks in Colorado are seeing from marijuana taxation/fees;

  • Raise the IL statewide minimum wage to $15 per hour.

 

The only one of these many factors important to IL WC professionals is the $15 per hour minimum wage. If that passes, I assure you IL WC wage loss differential benefits are certain to change in many industries, because anyone who can work, even with severe restrictions, will be making at least $15 per hour.

 

I assure my readers reserves for wage loss differential claims are going to have to change if the new minimum wage becomes law. If you aren’t sure why/how, send a reply.

 

As a long-time IL WC Commission observer, I hope the secret-powers-that-be who run the Commission keep our State in the middle of the pack of United States for work comp costs. We don’t need to get on everyone’s radar for being too expensive, PLEASE!!

 

On the federal level, the Bipartisan HSA (or Health Savings Acc’t) Improvement Act (H.R. 5138) was introduced in the U.S. House, but was not included in the spending bill and has yet to be voted on. The proposal makes helpful changes to current HSA rules, including:

 

  • Allows HSA-compatible plans to provide pre-deductible coverage for services and medications for chronic conditions and for services at on-site clinics and retail clinics (e.g., clinics in pharmacies).

  • Permits employees to use HSA funds to pay for wellness activities, equipment and gym memberships.

  • Conforms HSA rules to other tax code rules to allow parents to use their HSA funds to pay for medical expenses of children who are not dependents through the end of the year in which the child turns 26.

  • Permits employees to contribute to HSAs even if the employee’s spouse participates in a general-purpose health flexible spending arrangement (health FSA).

  • Makes it easier for employers to add an HSA-compatible plan when the employer sponsors a health reimbursement arrangement (HRA) or health FSA.

 

These proposals, if they become law, may significantly change the U.S. landscape on non-work-related healthcare coverage.

 

On another front, the Equal Employment Opportunity Commission (EEOC) recently advised a federal court it is not likely to meet its self-imposed August deadline to issue updated regulations describing how the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) apply to corporate wellness programs. Regulations issued in 2016 were recently vacated by the court effective Jan. 1, 2019.

 

One problem for the EEOC is all regulations must be voted on by the five-member commission. Two seats on the commission are vacant and one commissioner is up for re-nomination. Nominees for those seats are being held up in the U.S. Senate, pending the outcome of the current mid-term election.

 

Whatever you do folks, keep the faith. The United States will rise again! I appreciate your thoughts and comments. No, I don’t like Donald Trump. Please post them on our award-winning blog.

 

 

Synopsis: Dreaded Consecutive IL WC Claim(s)—Who Knows Who Owes?

 

Editor’s comment: In Par Electric v. Illinois Workers' Compensation Comm'n, 2018 IL App (3d) 170656WC, issued October 19, 2018, the IL WC Appellate Court considered a claim where Claimant filed workers' compensation claim for a June 2014 injury to his right arm while in the employ of Par Electric Company. He returned to work elsewhere and later filed IL workers compensation claims for April 1, 2015 and April 3, 2015 injuries to his right shoulder while working for the other company. The events leading to new problems were not severe trauma—one event was simply tossing a tool to another worker.

 

The IWCC in its wisdom, reached the conclusion the two April 2015 accidents did not constitute intervening and superseding accidents sufficient to break the causal connection from the June 2014 accident. In short, Par Electric, the first employer got stuck with all three claims, even though Claimant recovered sufficiently to return to construction electrician work.

 

In my opinion, the new Appellate ruling follows a solid trend—they let the IWCC, as the primary IL administrative agency entrusted to determine medical causation make they call. In short, the Appellate Court ruled the IWCC decision  was not against manifest weight of evidence. Our Appellate Court, WC Division noted the evidence supported a finding Claimant had not completely and fully recovered from his 1st injury and surgery despite being released to return to work.

 

My final whiny, court-watchers comment is to note it took almost four years to resolve who was going to have to take care of this worker—one would think we are smart enough to get such decisions done quicker. I do feel the ruling by the Appellate Court, WC Division does send a message—they are going to follow the IWCC’s lead on such issues so, don’t waste time and money appealing.

 

It was a unanimous ruling you can view on this trusted link: 

 

Par Electric v. IWCC

 

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

 

 

Synopsis: From Brad Smith, our KCB&A GL defense team lead—New Cook County HIPAA order.

 

Editor’s comment: This was just disseminated and we want clients and colleagues to be aware of it.

Law Division Administrative Order 18-1 HIPAA Order

Cook County HIPAA Order to view the Law Division Administrative Order 18-1 HIPAA order.

Please contact Brad Smith at bsmith@keefe-law.com for concerns.