3-9-12; Impairment ratings?? In a Knife Fight??

The line above taken and mildly changed from the classic movie Butch Cassidy and the Sundance Kid® seems appropriate for the battle currently being waged over this new concept in the Illinois workers’ compensation system. We truly feel the controversy is going to continue to go back and forth for years. There are several subplots being played out right now.

Please note the Illinois WC Commission has to consider the concept if impairment ratings are brought to the table by either side of the litigation. They won’t consider them if you don’t get them! The changes to our statute were enacted on June 28, 2011 and requires impairment ratings to be considered for claims occurring on or after September 1, 2011. Please note impairment ratings aren’t “inadmissible” as evidence of permanent disability in earlier claims—evidentiary objections to impairment ratings for earlier claims goes to their weight but not their admissibility. Arbitrators and Commissioners are not required to consider them in earlier claims but they clearly could do so, if they felt it appropriate. That said, we are not aware of Arbitrators approving pro se settlement contracts in sole reliance upon an impairment rating—the main reason it may be missing is very, very few insurance carriers and TPA’s in Illinois truly understand how things are going to work when and if ratings are used.

So here are some thoughts for everyone to consider.

First, who can provide an impairment rating? The statute only requires two things—a licensed physician and adherence to the most current edition of the AMA Guidelines—the AMA Guidelines are currently in the Sixth Edition. Please note the physician does not have to have any specific “certification” or licensure to provide an impairment rating.

Next, can/should a treating doctor provide an impairment rating? In our view, that is how medical practice in Illinois should change to adapt to the new law—treaters are best-positioned to provide impairment ratings and we ask all of them to add the concept to their quivers.

In contrast, we had one prominent claimant attorney outline their view it is a conflict of interest for a treating doctor to provide an impairment rating—with respect to the attorney, we consider that opinion to be misleading and unfounded. From clients across the U.S. we are told thousands of treating doctors in other states provide them every day of every year. For one example, Tennessee’s workers’ compensation system provides treating doctors are to outline impairment ratings at the time the employee reaches MMI. The Tennessee WC system has a state WC form for that specific purpose and their website indicates:

A medical impairment rating and the date of maximum medical improvement, as determined by the treating physician, and all other information needed to settle a claim must be documented in writing on the Attending Physician’s Report (Form C-30). Insurance carriers must make an offer of settlement in writing within thirty (30) days of their receipt of this information. The claimant must indicate approval or rejection of the offer and sign the offer of settlement.

Third, can we get an impairment rating and simply pay it in Illinois?—sure, what isn’t “illegal” is “legal.” We have no idea how it would be conflict for a treating doc in Illinois to provide an MMI determination and an impairment rating where it is effectively required by law in Tennessee. Doctors don’t have varying patient-physician conflicts. What you can learn from this colloquy is claimant attorneys in Illinois know how impairment ratings may hurt their business and they are fighting the concept in every way.

Fourth, will the Illinois WC Commission provide/create an impairment rating form to be sent to treaters a la Tennessee? Don’t hold your breath on that one unless you like walking around looking blue—there is no chance the secret-powers-that-be who run the IL WC Commission are going to let our Commissioners do something simple and easy to facilitate impairment ratings in this state. As we indicate above, the claimant bar dislikes, detests, despises and abhors ratings and they don’t want them to be easy to use. However, it isn’t against the law to send an impairment rating form to a treater for use in your claims—we are told some of our clients are modifying such forms from other states for use in their Illinois WC claims.

Fifth, can/should an IME doctor provide an impairment rating? The same prominent claimant attorney asserted IME doctors are also precluded from providing impairment ratings due to an unstated conflict. Again, we have no idea where that prohibition might be coming from—there is no rule, law, ordinance, guideline of which we are aware that might preclude an Illinois IME doctor from providing a causal connection opinion and doing the necessary evaluation to also provide an impairment rating. Again, we consider the claimant attorney’s concerns to be legally unfounded. We are told many IME doctors are already taking courses and adding this new gizmo to their medical tool chests.

Sixth, do IL WC insurers and TPA’s have to get impairment ratings on their files? In short, the answer is no with a caveat--we had a solid claims manager advise their organization is going to at least routinely ask for impairment ratings to demonstrate due diligence in claims handling. Their worry in not using impairment ratings or at least asking for them will lead to outside auditors criticizing them when millions are being paid in permanency. Please also note you are going to lose a competitive edge if other companies start to implement them and your organization doesn’t. We strongly feel impairment ratings should become part of your everyday claims practice. All the attorneys at KC&A are going to request our clients/adjusters ask for impairment ratings on every single file—the potential savings is just too great, if they are used properly and on every claim.

Seventh, can you simply get the impairment rating from the treater and pay it? We don’t see why not and ask your thoughts on this one. Please note this claims practice doesn’t technically “close” the claim—the only way to close the claim and cut off medical rights for an IL WC injury is to get a pro se settlement approved. Our thoughts on using/paying impairment ratings vis á vis the pro se settlement process is threefold:

      If claimant remains in your employ, you aren’t typically “settling” anything in an IL WC pro se settlement, as we feel it is easier to prove an aggravation than it is to prove an initial accident in this state;

      If you show claimant the rating and send them a check, most folks would feel they got fair value—this may unquestionably minimize litigation;

      If claimant gets a zero impairment rating—you may also minimize litigation to let them know their own treater didn’t outline any “impairment” and therefore you aren’t making an offer.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.