12-22-11; Can you audit or do wellness checks on total and permanent claimants in IL? Can you ask a claimant to demonstrate they remain alive? Can you ask a claimant to prove they remain totally...

We were asked this question by a reader and consider it an important thing for adjusters and risk managers to consider. In our view, Illinois has three ‘types’ of total and permanent (T&P) disability awards.

In short, there are

1.    T&P’s that are in the category our courts called “odd-lot” where a worker is able to magically prove their disability blocked them from locating work within their restrictions or disability. We call this “lazy-lot” T&P’s because there is no question that, in our view, some of such claimants get the award because they do a great job of “unfinding” work, like claimants seeking unemployment benefits who supposedly can’t find jobs for as long as four years. In our view, such persons aren’t actually trying and U.S. benefit systems like workers’ compensation and unemployment systems reward it. This T&P category would also include state, county and municipal employees who could be returned to government jobs in different agencies but the governments don’t or won’t rehire them, claiming work or union rules block rehiring.

2.    T&P’s where all the doctors say claimant will never be able to work again in any job. For one example, a worker with a severe closed head trauma who has difficulty walking, speaking, eating would fit into this category.

3.    T&P awards called statutory T&P’s—without meaning to be insensitive, this award requires the injured worker to have been paralyzed, blinded or lose several major body parts. Such workers can work after suffering such catastrophic losses and our liberal courts won’t allow their benefits to be cut. If someone is blinded or loses an arm and a leg, it is hard to fight about cutting lifetime benefits if they return to work.

Claims involving T&P from numbers 1-2 above can and should be at least annually reviewed. An insurance carrier/TPA that doesn’t annually audit the status of such claims at least annually may continue to issue T&P benefits to a “dead person” and such weekly checks may start to be cashed.

Please note the categories above aren’t as clearly outlined in our IL WC Act. In fact, the words “odd-lot” total and permanent disability don’t appear anywhere in the Act—in our view, it was judicial legislation to create the concept. More conservative judicial rulings could end this clunky concept in a single bound and Illinois’ injured workers would adjust.

To answer the question about what an employer can do to monitor ongoing payment of T&P benefits in situations we number 1-2 above, you can get an IME on what we feel should be an annual basis. If the injured claimant doesn’t attend the IME, you can move to suspend continued payment of T&P weekly benefits. In King v. Illinois Industrial Commission, the employer filed a motion to suspend the claimant's PTD benefits pursuant to section 12 of the Act, arguing compensation should be suspended because the claimant refused to comply with a section 12 request for a medical examination. After a hearing, the Commission denied the motion, but ruled Section 12 gave the employer the right to a medical exam and ordered the claimant to submit to such an exam. The circuit court confirmed the decision of the Commission and the reviewing courts agreed.

The IL Supreme Court then considered whether a claimant who received a PTD award pursuant to section 8(f) can be required to submit to an employer's request for medical examination pursuant to Section 12, even though the employer has not filed a petition to modify claimant's benefits pursuant to section 8(f) or section 19(h). The Supreme Court noted Section 8(f) provides for termination or reduction of a PTD award where a claimant returns to work or is able to do so and earns or is able to earn as much as before the accident. They also noted Section 19(h) grants employers a limited right to have certain compensation awards revised, but only within a specific number of months after the award becomes final.

In King, the Supreme Court also noted Section 12 required a claimant to submit to a medical exam at the request of the employer and the employer could suspend payment of benefits if the claimant refused to submit to such an exam. In summary, the Supreme Court held an employer may suspend payment of benefits where a T&P claimant refuses to submit to a Section 12 medical exam, even in the absence of a petition pursuant to Section 8(f) or Section 19(h).

From our review of that decision, an Illinois employer has a right to make a medical inquiry into the status of disability of a T&P claimant. However, please note in a later ruling in a decision named Boyd Electric, our Appellate Court ruled Illinois employers did not have a right to request copies of tax returns or other indicia of a T&P claimant returning to work. While we completely disagree with that ruling, it does point to the focus of what we feel are hyper-liberal reviewing courts in this state—their focus isn’t typically on whether claimant has or can return to work. The focus of our courts is on a change in “disability” that we consider to be a magical concept that makes sense only to lawyers.

As an example, in the ruling in Cassens Transport, wage loss differential benefits couldn’t be reduced solely in reliance on heightened post-award income of a claimant. The Illinois reviewing court said lifetime wage loss differential benefits could only be reduced if the worker’s disability had changed. What this means is the benefits are set/awarded based on two factors; disability and post-injury income levels. To reduce or modify them at a later time, the reviewing court indicated they would only measure one of the two concepts—“disability” whatever that might mean.

Therefore, if a claimant with a triple-operated low back got a wage differential award of $400 a week due to proof of weekly wage loss and the worker later returned to start a competitor to Microsoft© and was now making several billion a year, the employer would still be required to continue to pay lifetime wage loss benefits, as if the wage loss were still ongoing if the employee could indicate the “disability” remained the same. Most Illinois employers and insurance carriers/TPA’s consider that outcome to be ludicrous.

In our experience, you simply have to remember you are dealing with Illinois. Long story short, wellness checks or annual audits of total and permanent disability claimants are legal and an important part of Illinois WC claims-handling. If insurance carriers/TPA’s and/or self-insured employers aren’t doing them, there is a strong possibility they are overpaying benefits. Please let us know your thoughts.