12-22-2014; Did "Off Work" Notes Go the Way of the Dodo in IL WC?; Settlement Contract Tips; Important Drug Use Ruling, Analysis by Lindsay Vanderford and more

Synopsis: Have “Off Work” Notes Gone the Way of the Dodo in Illinois Workers’ Comp?


Editor’s comment: As defense lawyers and counselors, we have always hated what we call “blind” off work notes. What we mean by “blind” off work notes are written notes from an injured worker’s doctor that says “off work” and nothing else. We recently received one from a Petitioner’s lawyer and had to laugh to contact the lawyer and say it doesn’t provide enough information for us to do anything. We also made it crystal clear we weren’t going to pay lost time benefits or TTD/maintenance based solely on an “off work” note due to the lack of information.


Please also remember an injured Illinois worker can receive as much as $1,341.07 in weekly tax-free TTD benefits which is high cotton for most folks. If a worker is getting anything close to the TTD/maintenance maximum, they are happy to provide you a note on a doctor’s stationary with the two words “off work” to supposedly keep having you pay them. We urge our readers, risk managers and claims adjusters to watch very carefully when you are paying almost $70K a year to a worker with the hilariously limited information provided in an “off work” note from a treating doctor.


So What Changed?


Well, one good thing about reading the KCB&A Monday Law Update is we watch legislation, case law and all defense developments in this nutty state’s workers’ comp system. What changed in 2011 were significant amendments to the IL WC Act. One of the most important developments was utilization review or UR became presumptively effective in cutting off unreasonable and unnecessary medical care. In short, if you think an injured worker is treating too long, you can contact CorVel, Genex or CID Management and ask them to give you a strong opinion on the reasonableness and necessity of ongoing care. The preliminary UR determination by a generalist is subject to appeal to a specialist but the whole process can take a week or two to get a defined answer. Either the employee or the treater can ask for the initial determination to be appealed. And, as we outline above, the final UR answer is presumptively accurate.


There are three types of utilization review: prospective, concurrent, and retrospective. A prospective review is also known as a “pre-certification” and is the pre-approval process for necessary and recommended medical treatment. A concurrent review takes place while treatment is in process, this is often used during long hospital stays or stretches of outpatient services/physical therapy. Retrospective reviews are performed after treatment has been completed and is an analysis of specific patient data for medical necessity and appropriateness. Please note the IL WC Act does not allow a UR provider to opine on causal connection—an IME is needed if you disputing that issue.


What also changed in Illinois case law?


In two recent appellate rulings that are generally disliked by the defense industry but have some wisdom to them, the Illinois Supreme Court in Interstate Scaffolding and the Illinois Appellate Court, Workers’ Compensation Division in Matuszcsak laid down a simple rule. In those claims, the reviewing courts made it clear TTD/maintenance has to be paid until the worker reaches “maximum medical improvement” or MMI. In our respectful view, a doctor who is providing a note to allow the injured worker to continue off work and receive benefits has to do more than just say “off work.” The treater has to effectively say/write “Patient is not MMI and needs [insert medical care].” To us, a blind off work note won’t suffice. A doctor’s note indicating specific care is required would support a claim for continued TTD.


However, when a treating doctor recommends their patient has to be off work for a longer period of time and also needs more medical care, claims handlers and risk managers can use the wonderful tool of UR to get a quick and simple response to the question—“is this requested care reasonable and necessary?” If the UR answer is no, please don’t pay any more TTD or maintenance. Send the employee (and the attorney, if there is one) a letter consistent with Rule 7110.70 of the Rules Governing Practice and confirm you are stopping TTD. If you need help with the letter to claimant send a reply.


In the simplest of terms, we feel "blind off work” notes have been rendered worthless and were replaced with the requirement the treater find some additional medical care that will stand up in the cauldron of UR. Please note this concept is only going to work if the IL WC defense industry understands it and starts to implement it.


We recently saw a report from George Pawlaczyk of the Belleville-News Democrat where he outlined an IL prison guard was provided full pay for a year based solely on “off work” notes. If this report is accurate, it indicates the claims handlers for the State of Illinois who work at TriStar don’t understand the new rules and aren’t implementing them. It is possible the claims handlers are “saving money” to not use UR but awarding the worker with more than $60K in pay when he could and should have been working. One can only guess how many government workers are taking advantage of what we feel is a major mistake in handling IL WC claims for our “kleptocratic” state. Take a look at the article for yourself at: http://www.bnd.com/2014/12/13/3561394_injury-a-mystery-off-work-prison.html?rh=1


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




Synopsis: Settlement Contracts In Illinois Workers’ Compensation—Thoughts for Veteran Claims Handlers on Closing Claims.


Editor’s comment: We receive lots of draft settlement contracts and get asked all the time how to best handle them. The defense team at KCB&A is happy to review such documents at no charge—just send them in an email and we will provide our thoughts.


We feel one of the best things about IL WC is the ability to forever close a claim, unlike similar claims in other states that may “settle” but some benefits also remain open. Here are some thoughts from us. Please provide us your thinking on these intricate issues.


One concern when settling a WC claim is there may be medical bills that both sides know about and the insurance carrier/TPA intends to pay but hasn’t finalized the Medical Fee Schedule pricing process and paid them. We feel the best approach to that concern is to insure the employer or its carrier/TPA is on the hook or may be willing to pay for all care under the IL WC Medical Fee Schedule of which you have knowledge at any time in the claim. If you aren’t willing to pay certain medical bills and the other side will accept denial, the contracts should confirm denial of the disputed care.


On the other side of that issue—never agree to indiscriminately pay “all” medical bills in an IL WC settlement contract. Don’t check that box!! If you do so, you may owe for thousands of dollars in medical bills for care you never knew about. We have had Petitioner’s attorneys sandbag and hold back challenging medical bills to see if you will agree to pay all bills—at that point, they send the previously hidden bills and demand full payment. In our view, this approach has ethical issues for the attorneys but we caution everyone on the defense side—caveat emptor—don’t agree to pay all bills, agree to pay all known bills.


As to Medicare and CMS, the contracts should always address such issues. We have two certified Medicare specialists in Shawn R. Biery, JD and Matt Ignoffo, JD and they are happy to review Medicare compliance in settling IL WC claims. In our view, you will have to take one of two approaches to this issue—you will have to:


1.    Obtain pricing and fund a Medicare Set-Aside Trust or

2.    Leave medical rights open.


Both approaches have challenges for all sides but if claimant is either Medicare eligible or soon to be eligible, you should not and cannot violate U.S. law to avoid the concept. Again, if you need help with these issues, send a reply.


As a final thought on all IL WC settlements, we consider our great Arbitrators to diligently review all contracts. Triple-check your math to avoid having contracts bounce back and cause unneeded delays. Please also remember if you are going to make any changes to the contracts after they were initially drafted, the changes must be initialed by both sides.


We appreciate your thoughts and comments. Please reply with questions or concerns.



Synopsis: The Fifth District Illinois Appellate Court Interprets an Employer’s Alcohol and Drug Policy to Allow Recreational Drug Use! Thoughts and Analysis by Lindsay R. Vanderford, JD.

Editor’s comment: On December 2, 2014, the Illinois Appellate Court of the Fifth District interpreted an employer’s alcohol and drug policy to mean that use or possession of drugs, or being under the influence, is prohibited only for use while on the job or while on the employer's property. We may want to change our policy language, folks.

In Eastham v. The Housing Authority of Jefferson County and The Board of Review of The Department of Employment Security (9-MR-57), Plaintiff was required to submit to a random drug test by his employer, the Housing Authority of Jefferson County. Plaintiff informed his supervisor he believed he would fail the drug test because he had smoked marijuana during a recent vacation. His employment was terminated before the results of the drug test were available. The test subsequently came back negative. Plaintiff's claim for unemployment insurance benefits was denied. The basis for this decision was a policy of the employer which provided employees may not use or be under the influence of alcohol or any controlled substance "while in the course of employment."

Plaintiff filed a petition for administrative review. The circuit court reversed the administrative decision, finding (1) the phrase "while in the course of employment" includes only the times during which an employee is performing work duties; and (2) the policy was unreasonable to the extent it can be interpreted to regulate an employee's conduct outside of work. On appeal, the Appellate Court affirmed.

Plaintiff was employed by the Housing Authority of Jefferson County (Housing Authority) in its maintenance facility. Its drug- and alcohol-free workplace policy provided, in pertinent part, the "possession, use, consumption or being under the influence of a controlled substance *** while on Housing Authority premises and/or while in the course of employment of the Housing Authority" violated the terms of employment for any employee. The policy further provided "for purposes of this policy, 'under the influence' means having any measurable amount of a prohibited substance under this policy in any test of the employee's breath, blood, urine, hair, or any other test permitted by law." The provisions of the policy were incorporated into the collective bargaining agreement.

On December 19, 2008, Plaintiff was required to submit to a random drug test pursuant to this policy. After taking the test, he informed his supervisor he had smoked marijuana twice while he was on vacation a few weeks earlier. He admitted to smoking small amounts of marijuana on November 15 and November 22, 2008, and he returned to work on November 24. Plaintiff told his supervisor he did not believe he would pass the test as a result.

Two days later, he made the same admission to the Housing Authority's executive director. On December 22, at the director's request, Plaintiff and his union representative met with the director and Plaintiff’s supervisor. The union representative noted Plaintiff knew about the provisions of the drug- and alcohol-free workplace policy. Plaintiff was discharged for violating the policy. Subsequently, the results of the drug test came back. The test was negative.

Plaintiff filed a claim for unemployment insurance pursuant to the Unemployment Insurance Act (820 ILCS 405/100 et seq. (West 2008)). One of the questions on the application asked if claimant's employer had a rule or policy relating to the last act that led to the claimant's discharge and, if so, what that rule or policy was. Plaintiff responded in the affirmative and described the policy as "not using drugs while employed" by the Housing Authority. A Department of Employment Security claims adjudicator found Plaintiff knew smoking marijuana violated his union contract and, as such, "his choice to use the drug represents willful misconduct." The claims adjudicator therefore found Plaintiff was ineligible for unemployment insurance benefits.

The plaintiff requested an administrative appeal of this decision. A Department of Employment Security referee affirmed the claims adjudicator's decision. The matter then proceeded to the Board of Review of the Department of Employment Security (Board of Review or Board). The decision of the Board of Review focused on the parties' conflicting interpretations of the phrase "while in the course of employment" in the Housing Authority's policy. Plaintiff maintained the phrase did not include time he was on vacation while employed by the Housing Authority. The Housing Authority argued because it was required to provide a drug-free policy for its employees and tenants in order to receive federal funding, the phrase must be interpreted to include even time away from work. The Board of Review accepted this argument and concluded "while in the course of employment" referred to Plaintiff's entire "tenure while working for the employer, not just while performing services." The Board of Review issued its final administrative decision upholding the denial of benefits on September 30, 2009.

The Circuit Court reversed the administrative decision, and the Appellate Court affirmed this decision noting the Housing Authority's policy did not define the phrase "in the course of employment," and the Board of Review did not provide any rationale for its interpretation. Courts of this state have defined that phrase in the context of workers' compensation claims, holding that injuries occur "in the course of employment" if they take place (1) "at a place where the employee is reasonably expected to fulfill her duties," and (2) "while she is performing those duties." Pechan v. DynaPro, Inc.

For Illinois employers, this interpretation means creating an ironclad Alcohol and Drug Free policy is essential. Feel free to contact us for a copy of our draft policy. This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached 24/7/365 for questions about WC at lvanderford@keefe-law.com.