12-30-13; Our Suggested New Year's Resolution for Supreme Court Chief Justice Rita Garman; How to Best Authorize WC Medical Care; A Must-Read for WC Managers

Synopsis: Our Thoughts on Suggested Workers’ Comp New Year’s Resolutions for IL Supreme Court Chief Justice Rita Garman.

Editor’s comment: We salute esteemed Chief Justice Garman as she has starts her new job as basically the “Five-Star General” of our IL Courts system. As her “captains” and “lieutenants,” we want to provide a few important thoughts.

First, we note the Illinois Supreme Court has complete control of the five-member Illinois Appellate Court, Workers’ Compensation Division. In fact, the IL WC Act still says appeals from the Circuit Court are to be heard directly by our Supreme Court—several decades ago, the IL Supreme Court issued their rule changing that path to require the matter first be heard by the combined panel of the Appellate Court. The IL Supreme Court’s members decide who will be on the penultimate appellate panel. We are respectfully asking Chief Justice Garman take a stronger look at how that panel is made up and potentially open up the selection process with open hearings or discussion from our state’s business and labor leaders.

As you read this, our IL Supreme Court is composed of three jurists of Republican heritage and four who came from the Democratic party. If you read the recent and important report of the Illinois State Chamber of Commerce titled The Impact of Judicial Activism in Illinois, our State Chamber details nineteen WC cases of recent vintage in which the report says decisions by the Illinois Workers’ Compensation Commission that would have limited benefits to injured workers were overturned or greatly weakened by the Appellate Court, Workers’ Compensation Division. It is our reasoned legal opinion the 19 significant rulings demonstrate a strong pro-labor bias by the lower court’s long-term members.

“Sanity Clause” Reinstated by the IL Supreme Court in the WC Arena on December 19, 2013

As we reported last week, the most controversial and shocking of these IL WC appellate rulings was The Venture-Newberg-Perini Webster & Stone v. IWCC that would have increased IL WC benefits by billions of dollars by turning several million Illinois workers into “travelers” who would have then been covered for non-work-related injuries. We were happy to report that last week, our IL Supreme Court’s justices tossed the whole thing, regardless of whether the appeal was over factual or legal issues. Our IL WC system went from pointing to having the highest costs in the U.S. to returning to probably the middle of the top ten of the United States. We again applaud the Supreme Court for their great ruling. However, we hope the Court’s distinguished members see the bigger picture from what they did last week.

When You Can’t Change the Thinking, Sometimes You Have to Change the Thinkers

When we think of what happened, we recall a story about “Da Coach” Mike Ditka. When Ditka was a special teams coach for the Dallas Cowboys, during a game, someone went to Head Coach Tom Landry and told him Ditka had called a reverse on a kickoff return. Coach Landry sent a message back: “Tell him if he runs that play, he’s fired.” Ditka changed the call and never called it again while coaching there. When Da Coach became Head Coach of the Chicago Bears, he called and the Bears ran a reverse on a kickoff during Super Bowl XX. Probably the worst possible thing happened—Bears All-Pro cornerback Leslie Frazier tore his ACL during the runback and never returned to his pre-Super Bowl form. There is no question Da Coach made a poorly thought out decision and the Bears paid for it in the seasons to come. The point we are making is that managers may need to make changes when poor decisions are made.

On the IL WC Appellate side, we are never going to forget the system-deforming potential caused by the Venture-Newberg-Perini ruling we outline above. The same five-members of that IL WC Appellate Court are still on the same panel and while we don’t think they will replicate that challenging call, they may move to other similar legal concepts and rulings, again with an overall focus of increasing IL WC costs in any and every way. With respect to the members of the IL WC Appellate Court, we don’t think that is a solid idea. We suggest new members for the IL WC Appellate panel with fresh thoughts and perspectives be considered by Chief Justice Garman and her distinguished colleagues. We point out Chief Justice Garman can’t and won’t “fire” the appellate justices—we respectfully ask they simply be assigned to handle important appellate work other than their current WC assignments.

How About Some Diversity in the Appellate Court, Workers’ Compensation Division?

On another note, an article from the IL State Bar Journal from May 2013 states

The appellate courts fare better with a 35 percent female population. Huge strides have been made on the Appellate bench since 1990 when only two women served in the entire state. Today, the most females are found in the First District, while the court with the highest percent of female is the Second District with females representing 50 percent of judges. Both districts make up Chicago and the northern-most part of the State.

In over three decades of handling WC appeals, we have never seen a woman justice serve on the IL WC Appellate Court five-member panel. We urge Chief Justice Garman to consider increasing diversity in this important appellate group.

How About a Business Member or Two for the Appellate Court, Workers’ Compensation Division?

We also feel Chief Justice Garman and the other members of our highest Court should consider the opinions of business leaders, the IWCC itself, our WC defense firm and many of the other WC defense firms across our state. The last defense-oriented or pro-business member of the five-member WC Division appellate panel was Justice Allan Stouder in the middle 1990’s, about two decades ago. Justice Stouder would write brilliant dissents, highlighting how a given ruling would hurt the interests of Illinois jobs and businesses—we haven’t seen such a dissent since he left. In fact, we were surprised to see a dissent in the Appellate Court ruling in Venture-Newberg-Perini but by the second and third similar “travelling employee” ruling, that Appellate Court justice fell into line with his colleagues and stopped dissenting.

We assure our readers, it is our view the last pro-business ruling from the Appellate Court, WC Division was way back in 2007 when they issued Airborne Express v. IWCC and limited overtime to workers that used their seniority to get it. Seven years is a long time between defense-oriented appellate decisions. Several hundred rulings since then are generally considered very liberal, pro-labor or “activist”—the main ones are highlighted by the IL State Chamber’s great report on the subject.

Right now, all five members of the IL Appellate Court, Workers’ Compensation Division seemingly act in unison for the interests of IL labor and ITLA. We don’t feel one business-oriented ruling every seven years or more is going to bring our IL WC law into line. To the extent our highest court has three Republican members, shouldn’t at least two members of the lower court also have a business focus?

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

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Synopsis: Thoughts on WC Adjusters Authorizing Medical Care in the IL WC System.

Editor’s comment: There are several medical caregivers who may try to take advantage of you, if you orally approve medical care. Therefore, we feel treatment and surgery authorizations for IL WC claims have to be in writing. We also feel the following fundamental concepts should be in every letter authorizing care under Section 8 of the IL WC Act:

#1: This correspondence does not include authority for a physician or other healthcare givers to dispense prescription medications.

Please be advised prescriptions cannot be dispensed from the physician or other healthcare giver’s office. A prescription card has already been issued to cover any and all injury-related medications and has to be used by this patient. Bills received for this physician or other healthcare givers’ prescription services will be denied. Please issue a written prescription to the employee for any medications prescribed and have them fill it within our protocols.

#2: Light duty work is continuously available for this patient. We will not accept and pay benefits based upon “off work” notes without other requisite information.

Please note the patient’s employer has an extensive light duty program and is anxious to have the patient return to medical modified work as soon as the patient is capable of any light duty work. If the employer cannot provide light work for any reason, we will locate and provide alternative light work at a suitable charity. If the patient provides you information to the contrary, please immediately contact the undersigned to discuss.

#3 This authorization is limited to payment of medical billing consistent with the IL WC Act and Rules Governing Practice—all medical bills will be coded, priced and paid consistent with the applicable law/rule.

This authorization does not guarantee payment of the full, undiscounted amount of your billing--we will pay for this surgical procedure and follow up care according to either an Illinois Workers’ Compensation PPP, PPO contract or the Illinois WC Medical Fee Schedule or the combination thereof, whichever applies. If you feel this care might fall outside those laws, please contact the undersigned before proceeding with care.

#4: Additional pre-authorization may be required for all non-emergent care.

In the case of a true medical emergency during care authorized herein, insure the patient is taken care of and contact us as soon as possible thereafter . For non-emergent care, pre-authorization for any further referral or testing/treatment such as physical, occupational or hand therapy, MRI, EMG/NCV, work hardening/conditioning, additional surgery or FCE is required. If such care is provided without preauthorization, medical bills may be denied. Please contact the undersigned with questions or concerns.

We thank our amazing reader who provided many of these ideas. We would love our readers’ best thoughts on HIPAA-GINA, UR and IME’s—should we include provisions for them in such letters?

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Synopsis: A Great Book, A Great Man and a Great Story.

Editor’s comment: For our readers in the U.S. workers’ compensation industry, you need to consider reading this great book about changing your corporate culture and saving your company money in HR, safety and risk.

The book chronicles an inspiring story of innovative leadership and organizational transformation. Captain Mike Abrashoff took command of the worst-performing ship in our Navy and made it #1 by changing his leadership style and the culture but not the crew.

When Mike Abrashoff took command of the naval vessel, the USS Benfold, the ship’s performance ranked at rock-bottom of the entire U.S. Navy. Worse, the ship’s company and crew didn’t feel safe about using their high-tech equipment and weaponry should they be called into action.

Determined to improve performance, but without the power to hire, fire or promote personnel, Captain Abrashoff focused on what he could change: the ship’s culture. His innovative approach broke from the traditional command-and-control leadership style and sought to see the ship from the eyes of his crew; creating a guiding set of principles he called Grassroots Leadership.

When crew members asked Abrashoff to solve a problem, his standard response became, “It’s your ship; what would you do?” The result was an empowered and engaged team that turned the ship into the Navy’s top performer. People at every level in business relate to Captain Abrashoff’s dilemma: being held accountable for safety and performance results without having the ability to make the rules or the players. His results-oriented approach equips organizations with the strategies, tactics and tools necessary to unleash innovation, lead significant change and increase operational performance. We also note his approach crosses all organizational lines—Captain Mike asked the lowest ranking worker to his second-in-command for their “best practices” approach on a regular basis.

Publications have heralded this remarkable story and Abrashoff’s first book, It's Your Ship: Management Techniques from the Best Damn Ship in the Navy, is a best seller with nearly 1 million copies in print. Last year, the much anticipated 10th anniversary edition of It’s Your Ship was released with updated content and a new chapter. We urge everyone to read this great work.