Synopsis: Will Illinois Voc Rehab Providers Ever Learn and Adhere to the Law that Governs Them?

Editor’s comment: We remain amazed at the utter lack of understanding of the statutes, rules and case law by many certified voc rehab providers who provide counseling services, create reports and appear to testify at hearings in our state. Here is an outline of it for training and future use. We also feel very few insurance adjusters and risk managers know and closely adhere the rules and requirements of the law.

Statutory definition of Vocational Rehabilitation is addressed in two Sections of the Illinois Workers’ Compensation Act

· Section 8(a) provides in part: The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.

· Section 6(d) further indicates: Every employer shall notify each injured employee who has been granted compensation under the provisions of Section 8 of this Act of his rights to rehabilitation services and advise him of the locations of available public rehabilitation centers and any other such services of which the employer has knowledge.

Injured workers and employers in Illinois may agree these sections of the Act provide very little guidance as to what vocational rehabilitation may be and what the worker would be entitled to in receiving this benefit—we are not aware of any employer who advises their injured workers of the “rights to rehabilitation services or locations of available public rehabilitation centers” as Section 6(d) requires. Like many statutory provisions in IL WC, it is a legislative command without any sanction for non-compliance.

In 2005, our IL Legislature added this language to Section 8(a):

Any vocational rehabilitation counselors who provide service under this Act shall have appropriate certifications which designate the counselor as qualified to render opinions relating to vocational rehabilitation. Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution. The employee or employer may petition the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer.

In 1983, a provision regarding vocational rehabilitation was made part of the IWCC Rules. Specifically, the provision appears in the Rules Governing Practice before the Illinois Workers Compensation Commission in Section 7110.10 as follows:

a) The employer or his representative, in consultation with the injured employee and, if represented, with his representative, shall prepare a written assessment of the course of medical care, and, if appropriate, rehabilitation required to return the injured worker to employment when it can be reasonably determined that the injured worker will, as a result of the injury, be unable to resume the regular duties in which he was engaged at the time of injury, or when the period of total incapacity for work exceeds 120 continuous days, whichever first occurs.

b) The assessment shall address the necessity for a plan or program which may include medical and vocational evaluation, modified or limited duty, and/or retraining, as necessary.

c) At least every 4 months thereafter, provided the injured employee was and has remained totally incapacitated for work, or until the matter is terminated by order or award of the Illinois Workers Compensation Commission, the employer or his representative in consultation with the employee, and if represented, with his representative shall:

a. If the most recent previous assessment concluded that no plan or program was then necessary, prepare a written review of the continued appropriateness of that conclusion; or

b. If a plan or program had been developed, prepare a written review of the continued appropriateness of that plan or program, and make in writing any necessary modifications.

d) A copy of each such written assessment, plan or program, review and modification shall be provided to the employee and/or his representative at the time of preparation, and an additional copy shall be retained in the file of the employer and, if insured, in the file of the insurance carrier, to be made available for review by the Illinois Workers Compensation Commission on its request until the matter is terminated by order or award of the Illinois Workers Compensation Commission or by written agreement of the parties approved by the Illinois Workers Compensation Commission.

e) The rehabilitation plan shall be prepared on a form furnished by the Illinois Worker’s Compensation Commission.

The form identified above is Form IC31. The Form is on our IWCC’s excellent website at: http://www.iwcc.il.gov/forms.htm#CM

Rule 7110.10 was written in 1983. This is the same year the IL Supreme Court decided the landmark case detailing the factors which determine if vocational rehabilitation is appropriate, National Tea Co. v. Indus. Comm’n. We consider that ruling required reading for all certified voc counselors—if you don’t know anything about it, by definition you are unprepared to handle your job in this state. The legal factors identified in National Tea are:

1. Proof the injury caused a reduction in earning power;

2. Evidence rehabilitation would increase earning capacity,

3. To restore the employee to his previous earning level if at all possible;

4. The employee’s potential loss of job security;

5. The likelihood that the employee would be able to obtain employment upon completion of his training;

6. The relative costs and benefits to be derived from the program;

7. The employee’s work-life expectancy;

8. The employee’s ability and motivation to undertake the program;

9. Evidence that the employee underwent similar rehabilitation in the past;

10. Evidence the employee may have received training under a prior rehabilitation program which would enable the claimant to resume employment; and

11. Whether the employee has sufficient skills to obtain employment without further training or education.

We feel all certified voc rehab providers should know and follow the law and rules in which they operate. Of those various factors in National Tea outlined above, we feel the one most often omitted from any voc rehab analysis is number 8—is the employee highly motivated to do what they are taught and actually locate work? We feel all voc rehab counselors should start and finish any report with that factor first. As lawyers and observers of this system, we are certain many employees don’t obtain new positions for one overriding reason—they don’t want to do so in order to gamble for Illinois’ highest WC benefits—wage loss differential benefits or the confusing and extra-statutory concept of “odd lot” total and permanent disability benefits. We call the second “odd lot” benefit “extra-statutory” because our reviewing courts simply made that one up about three decades ago—the words “odd lot” don’t appear in the IL WC Act or Rules and can be defined at one’s whim. The IWCC and reviewing courts have tried to delineate or refine the words over the years but we assure you their guess at what the words mean is as good as yours.

The duties of the employer and injured work in relation to vocational rehabilitation are a controversial topic in IL WC. We are all asked when to start vocational rehabilitation. The parallel question we receive from adjusters is when can they terminate TTD if voc rehab protocols are not followed by a given claimant. The Rules cited above outline the appropriate time is when it can be reasonably determined the injured worker will, as a result of the injury, be unable to resume the regular duties in which he was engaged at the time of injury, or when the period of total incapacity for work exceeds 120 continuous days, whichever comes first. We advise our clients if either factor is present, the Rules should be followed, voc rehab instituted with a certified counselor and a rehabilitation plan be completed and filed. If claimant doesn’t cooperate with the process, TTD should be terminated. Termination of TTD presumes you have documented close adherence to the Rules to avoid a claim for penalties/fees. If you aren’t sure about full compliance on the defense side, get the claim in front of an Arbitrator in a pretrial at the earliest opportunity to clarify your position and insure you won’t have exposure for penalties by adhering to and complying with the Arbitrator’s pretrial recommendations.

When should Voc Rehab start in an IL WC claim?

If the parties disagree, it can create controversy and litigation. According to Manis v. Industrial Commission, if petitioner or their counsel feels vocational rehabilitation is appropriate, at a minimum, petitioner has an obligation to make a formal demand for vocational rehabilitation. Failure to make a demand could result in a denial of vocational rehabilitation services as the issue may be deemed to have been waived. If you receive a demand for voc rehab services, be forewarned it may be problematic to terminate TTD without at least considering it.

Distinguishing Manis, the reviewing court in the later decision in Roper Contracting v. Industrial Commission indicated Section 8(a) sets forth the fiscal obligations of an employer under the Act, including an employer’s duty to provide “maintenance” benefits to an employee undergoing vocational rehabilitation. Please don’t be confused by the term “maintenance,” it is the equivalent of TTD. Further, neither Section 8(a) nor Rule 7110.10(a) places any burden upon employees to request vocational rehabilitation from their employer before maintenance may be awarded. In addition, the Rule places no duty on an employee to prepare a written assessment of the course of appropriate rehabilitation. The Roper Contracting court found neither section 8(a) nor Rule 7110.10(a), when read separately or together, require petitioner to request vocational rehabilitation before he was entitled to an award of maintenance. This is another problem with our reviewing courts in their analysis of the law and rules—they sometimes outline/state guidelines for the IL WC industry but may later contradict themselves in looking at the same law.

If petitioner does not receive vocational rehabilitation after demanding vocational assistance, petitioner should file a 19(b) and 8(a) Petition to have the issue decided by the Arbitrator and perhaps the Commission. Whether or not vocational rehabilitation is appropriate is a shifting burden. If petitioner can demonstrate he/she deserves vocational rehabilitation pursuant to National Tea, the burden shifts to the employer or insurance carrier/TPA to prove in a hearing a “reasonably stable job market exists for petitioner.” If the employer or insurance carrier/TPA believes it is appropriate to commence vocational rehabilitation, the services of a certified vocational rehabilitation counselor should be obtained and an initial assessment meeting should be scheduled. If petitioner fails to comply or attend the meeting, TTD may be terminated or the matter can be brought to the Arbitrator for pretrial or trial.

A challenging legal question arises as to whether a petitioner must be at maximum medical improvement prior to engaging in a vocational rehabilitation program. In our view, voc rehab can begin long prior to MMI being reached—getting back into the workforce should be part and parcel of the healing process. We don’t even understand why this debate goes on. Our Illinois Appellate Court in their 2002 ruling in Mobil Oil Corp. v. Industrial Commission compared the extent of the petitioner’s injury and the lack of a finding of maximum medical improvement to reverse the Commission’s award of vocational rehabilitation as inappropriate. Again, with respect to the members of our reviewing court, we don’t feel their determination closely adhered to the IL WC Act and Rules. We caution our readers, the members of the Court outline the law and we are simply court observers.

Does Anyone know a Certified Voc Rehab Provider Anywhere in IL that follows the Rules and fills out the IC31 Form and presents it for Arbitrator approval before starting counseling?

If both parties agree vocational services are appropriate and necessary, the intent of the Rules is for the parties to work together to create and sign the vocational rehabilitation plan outlined above--Form IC31. Rule 7110.10 requires the parties fill out the form and file it and present it to an Arbitrator with a vocational rehabilitation plan subject to their approval. The joint participation of the parties as well as the Arbitrator’s supervision are indicated. The Rule also outlines voc rehab plan is to be prepared and submitted on the form furnished by the Commission. We point out we are not aware of a single certified voc rehab provider that follows this Rule as it was designed and crafted by our IWCC rule-makers. We ask our readers if they are aware of any certified voc rehab provider that does follow the Rule.

Will Illinois Jumpy Arbitrators Push Claimants to be Motivated, Follow Voc Rehab Protocols and Get Jobs or Face a Loss of TTD?

One can’t truly blame Arbitrators for not knowing who their friends are—eleven Arbitrators have been fired in the last year, many without apparent reason. The remaining Arbitrators are looking over their shoulders, as they are in highly political jobs without civil service protections. In other states, when a claimant goes to the state rehab agency and doesn’t find work, they are told to “rub some dirt on it” and keep trying. Unlike our state, such claimants don’t get bigger settlements and don’t get more TTD. In this state, in over thirty years of practice before the Commission, we have never seen an Arbitrator caution an unmotivated claimant to get on their horse and find a job or face an irrevocable loss of benefits. You can’t blame the Arbitrators, the voc rehab consultants and many defense attorneys don’t bring the tough claims to them. And we feel many Arbitrators aren’t going to read the riot act to claimants for fear they would face sanctions or termination from getting tough on voc rehab compliance.

We feel vocational rehabilitation/maintenance plans should be presented to the Arbitrator, consistent with Commission Rule 7110.10, with evidence of entitlement, so that an administrative determination can be made, as opposed to claimants pursuing their own job search or obtaining vocational rehabilitation without the employer or insurance carrier/TPA knowing about it and without the Arbitrator’s approval. In claims where a demand for vocational rehabilitation was presented by claimant or their counsel and the employer/insurance carrier/TPA disputes the need for voc counseling, the Rules indicate claimant must bring the dispute to the Arbitrator to rule as to whether claimant can prove entitlement to voc rehab. As with all other disputed issues, It is claimant’s burden to prove the elements of any dispute by the preponderance of evidence, including the right to vocational rehabilitation benefits.

Who’s on First? Who Gets to Pick the Counselor? Which Party Owes the Cost of Voc Rehab Services?

Current legal authority suggests a claimant can select his or her own vocational rehabilitation counselor. In Copperweld Tubing v. IWCC, the IL Appellate Court decided the employer/insurance carrier/TPA must pay for the “reasonable vocational rehabilitation expenses” selected by petitioner or their counsel but also stated they had to pay for the petitioner’s voc rehab choice even though the employer or insurance carrier hired its own vocational rehabilitation counselor who met with and evaluated the claimant. However, Copperweld Tubing was limited to an initial assessment performed by petitioner’s choice of expert. The issue addressed in the decision was limited to the issue of petitioner’s earning capacity. We again assert this legal determination isn’t clearly outlined in the IL WC Act or Rules—we feel the reviewing court provided their thoughts on what they felt was a “best outcome” and now we all have to adjust.

From the language of the IL WC Act, it is quite clear Section 8(a) does not specifically require vocational rehabilitation, but the Act provides if vocational rehabilitation is ordered, the employer or insurance carrier/TPA is liable for payment of vocational rehabilitation. This is taken fromAmoco Oil v. Industrial Commission. The employer is not required to provide vocational rehabilitation where it is neither requested nor proven necessary. It is also possible for petitioner to create his/her own vocational rehabilitation plan but the Commission and courts discourage claimant-created vocational rehabilitation. In the Roper Contracting ruling cited above, the majority stated while our IL Supreme Court indicated disapproval of claimant-created, self-directed vocational programs there is no particular statutory prohibition or rule blocking claimant-created vocational rehabilitation.

What is at stake

The most expensive benefits in any WC claims office are a wage loss differential or “odd-lot” total and permanent disability claim. When faced with such claims, the employer and/or carrier/TPA are dealing with six and seven-figure exposures. When you are trying to defend them and get solid outcomes, you need voc counselors with savvy and moxie—they have to be willing to give great advice and face the reluctant claimants at a hearing. We continue to search for great voc counselors who know and follow the law/rules to get great outcomes. If you know any, please send a reply. If you have other thoughts and comments, please send them along or post them on our award-winning blog.

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Synopsis: HOLD EVERYTHING—Illinois Supreme Court to consider appellate denial of “Mailbox Rule” for WC appellate filings of IWCC decisions.

Editor’s comment: As we reported earlier this year, the IL Appellate Court decided they didn’t have subject-matter jurisdiction for judicial review of an Illinois Workers’ Compensation Commission decision because they ruled said SMJ vests in the Circuit Courts upon filing of a request for issuance of summons and an affidavit of payment of the probable cost of the record, NOT upon the date of mailing.

In Gruszeczka v. Illinois Workers’ Compensation Commission, the Appellate Court, Second District, vacated the judgment of the Circuit Court of McHenry County as having been entered in the absence of subject matter jurisdiction as claimant failed to commence his action for judicial review within the 20-day period mandated in Section 19(f)(1) of the Workers’ Compensation Act. Specifically, Section 19(f)(1) provides a proceeding for judicial review of a Illinois Workers’ Compensation Commission decision shall be commenced within 20 days of the receipt of notice of the decision. We are not aware of any extensions or exigent circumstances that might allow for expansion of this limitation.

Claimant sought judicial review of the Commission’s decision—affirming the arbitration decision denying claimant benefits under the Act. They mailed a request for the issuance of summons and his attorney’s affidavit of payment of the probable cost of the record to the clerk of the Circuit Court of DeKalb County. Said paperwork was filed stamped by the clerk on May 24, 2009—24 days after the Commission’s decision was undisputedly received in the office of claimant’s attorney on April 20, 2009.

The employer successfully filed a motion to dismiss arguing the Circuit Court lacked subject matter jurisdiction to entertain claimant’s action for judicial review because it was filed more than 20 days after the Commission’s decision was received by claimant’s attorney. Claimant responded, arguing he fulfilled the jurisdictional requirement for filing by mailing all necessary documents to the clerk within 20 days of his attorney’s receipt of the decision. Attached to claimant’s response, were affidavits of claimant’s attorney and a clerk at the attorney’s office stating the necessary paperwork was mailed to the Circuit Court Clerk on May 4, 2009. There was no evidence of when the Circuit Court Clerk received the document. The Circuit Court denied the employer’s motion to dismiss for want of jurisdiction. Upon transfer of the matter to the Circuit Court of McHenry County, a motion to reconsider was also denied.

In reversing the lower court and dismissing the appeal, the Appellate Court refused to adopt the “mailbox rule”—i.e., the time of mailing is the time of filing for jurisdictional purposes—reasoning section 19(f)(1) of the Act was clear and unambiguous, should be given its plain and ordinary reasoning and must be strictly adhered to in order to vest the Circuit Court with subject-matter jurisdiction over a judicial review action under the act. Essentially they followed a plain reading of the Act and suggested the legislature should engraft the “mailbox rule” if it was intended to apply. The Appellate Court vacated the judgment of the Circuit Court and held claimant failed to commence his action for judicial review within the 20-day period prescribed by the Act.

This article was researched and written by Sean C. Brogan, J.D. & Shawn R. Biery J.D. MSCC. We will advise of the update from the Supreme Court upon receipt to their ruling. In the interim, feel free to send questions and comments to Sean at sbrogan@keefe-law.com or Shawn atsbiery@keefe-law.com.

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Synopsis: IL WC Commission announces another “secret” political hiring.

Editor’s comment: Will we ever open up jobs at the Commission to folks that don’t have political patrons? The Commission has announced Amiel Harper, J.D. has joined the IWCC as Counsel to the Self-Insurers Advisory Board. He will also assist the Insurance Compliance Division on legal matters. Mr. Harper may be very well qualified for the job and we look forward to working with him. He holds a B.S. in Finance from Bradley University and a J.D. from Washington University.

Before coming to the IL WC Commission, he clerked for the Illinois Appellate Court, handled workers' compensation cases at the sometimes-Plaintiff and sometimes-Defense firm of Wiedner & McAuliffe, and served as Counsel for AGB Investigative Services.

What we didn’t see prior to Mr. Harper being hired was what Commissions/government agencies do in other states—advertise for the opening. The IWCC’s email blast and News section of their website didn’t say a thing about it—sssh, jobs aren’t open for the top candidate unless you have political pull to be the “best candidate.” Everything in the personnel area at the IL WC Commission remains a closely guarded secret and you still have to know someone’s-brother’s-cousin’s-uncle’s-sister to get a job there.

While we wish Mr. Harper every good thing in handling this new position, we hope someday the government jobs process becomes more open and less secretive.

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Synopsis: Why Use the IL Prescription Monitoring Program (PMP)?

Editor’s Comment: 19% of workers’ compensation costs are related to prescriptions and Oxycontin was the #1 WC drug prescribed in the U.S. in 2009. Hydrocodone with Tylenol is #3. Physicians are also prescribing more expensive drugs. Nearly 25% of all w/c drug costs are narcotics. One of the tools in the claims handler and case manager’s tool box is the PMP. Why should this tool be used?

At one point in the 1980’s and 90’s, physicians were told by the drug companies their patients could not get addicted to narcotic analgesics if they were in pain. In fact, with daily opioid use, physical dependence and tolerance can develop in days or weeks. (McQuay H. Opioids in pain management. Lancet 1999, 353: 2229-2232. and Baily CP and Connor M. Opioids: Cellular mechanisms of tolerance and physical dependence. Current Opinion in Pharmacology 2005; 5:60-80.) Also physicians were told patients who develop physical dependence on opioids can easily be tapered off. In fact, successfully tapering chronic pain patients from opioids can be difficult - even for patients who are motivated to discontinue opioid use. (Blondell RD, Ashrafioun L, Dambra CM, Foschio EM, Zielinski AL, Salcedo DM. A clinical trial comparing tapering doses of buprenorphine with steady doses for chronic pain and co-existent opioid addiction. J Addict Med 2010; 4:140-146.)

Most health care professionals don’t know the difference between chemical dependence, tolerance and addiction. Most don’t know how to assess opioid abuse or appropriateness. Most are uneducated regarding non-surgical pain-coping techniques and when they might be utilized instead of drug therapy. As a result, narcotic analgesics are being prescribed at an ever-increasing rate in the workers’ compensation arena, however with this increased use of narcotic analgesics; there is no proportional increase in functional capability of our injured workers.

As part of S&H Medical Management Services, Inc.’s initiatives to address Case Management strategies relative to one of the biggest cost drivers in W/C today we recently updated our IME procedures. S&H previously addressed this issue with our IL IME physicians by asking them to complete an online PMP review in cases when our IW were being prescribed Schedule 2 -5 drugs by the treating physician. At times our nurses encountered resistance from physicians who stated this was an encroachment on the injured worker’s privacy. From the perspective of KCB&A, this is another reason we recommend all of our clients obtain a HIPAA-GINA compliant medical release. We don’t know how an IME doc can do a valid IME when you don’t know what narcotics the examinee may be taking.

Further research has shown this is a nationwide initiative, not just something in IL physicians can ignore. The office of the President of the United States has written a paper addressing this epidemic with initiatives detailing how it is recommended the healthcare community respond to this crisis. So how do we educate our treatment providers and increase adherence to the request to review the PMP? S&H has developed a white paper that is attached to our IME letters to the physician. It discusses the issues our country is facing regarding prescription drug abuse and the need to address this issue. This attachment will go to all physicians that are requested to access the PMP when performing and evaluation of an injured worker. Hopefully this additional info will decrease the concerns previously expressed by the physician and increase adherence.

S&H also discovered most of the states in which they practice have a PMP or PDMP. The Federal government is proposing all states initiate a PMP.

What are the potential benefits of this intervention? As discussed earlier it has been shown that you can become dependent/progressing to addiction to narcotic analgesics within a very brief time – within days to weeks. Addressing this potential head on can prevent this type of situation from developing plus hopefully preventing issues such as drug diversion or outright abuse. Additionally, if this becomes a case that requires a MSA at time of case closure, preventing the need for prescription medications during active treatment will potentially save thousands of dollars over the life of the case. You may also be able to prevent the need for a costly drug rehabilitation program.

What are the considerations when scheduling an IME? Because access to the PMP is state specific, you do need to schedule the IME in the state in which you require the review. But there are other options for this review should your injured worker be located in an area where it is advantageous to perform the IME in a neighboring state. S&H has a URAC accredited UR partner that if utilized for the PMP and medication review in a state specific manner, would free you up for coordinating the IME across state lines when needed.

When do you request a PMP review? When your IW is located in a state that has a PMP or PDMP in place and the IW is being prescribed Schedule 2 -5 drugs by the treating physician.

This article researched by Linda Van Dillen RN, BA, CCM Executive VP/Partner at S&H Medical Management Services, Inc. If you have any questions regarding the states in which a PMP can be conducted, when a review is advantageous or how to coordinate with the IME - call Linda Van Dillen at 314-494-4179 or via email at linda.vandillen@SandHmms.com.

KCBA Blog

10-29-12; Voc Rehab Rules for IL WC; Brogan/Biery review IL Supreme Ct acceptance of "mailbox rule" dec; Can't Stop Politics-as-usual at IWCC; Linda Van Dillen recommends PMP to Cut Narcotics and more