Synopsis: Why are IL WC Lawyers So Afraid of Treating Doctors Providing AMA Impairment Ratings in IL WC Claims?
Editor’s comment: We recently saw one of those mildly threatening letters from a noted IL WC Petitioner/Plaintiff lawyer to a nurse case manager or NCM confirming their position about the NCM asking for an impairment rating from a treating doctor. The letter says:
It is understood that treating doctors are not to give AMA Impairment Ratings per the 6thEdition without consent of the patient. Patient herein and his/her attorney irrevocably do NOT consent. Nurse shall not request of any treater any AMA impairment rating and if any is given it shall not be used in evidence or any other way in any hearing before the Workers’ Compensation Commission or any Arbitrator or Commissioner thereof.
If you aren’t sure AMA Impairment ratings landed in Illinois for claims starting on and after September 1, 2011. Ratings are considered to provide permanency values somewhat lower than the Illinois WC system previously provided. An “impairment rating” is defined as a medical percentage estimate of loss of life or work activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living or ADL’s. ADL’s are basic self-care activities performed in one’s personal life such as bathing, eating, personal hygiene and getting dressed.
Impairment and disability as used in the 2011 Amendments to the IL WC Act were diverse concepts. Starting in 2011, AMA impairment ratings became an unquestioned component of the PPD percentage loss of use assessment, but the IL WC legislation did not draw a direct equation between the impairment rating and the final determination of permanent partial disability. The most current version of the AMA Guides is the 6th Edition. This study clearly indicates disability is a determination made by an administrative law judge and may or may not have a relationship to impairment. All editions of the AMA Guides state an impairment rating is not equal to disability and is not intended to be a measure of disability since disability has to do with restrictions in job functions rather than the actual anatomic limitation.
What Were the Factors Which Led to the AMA Guides Being Included In the 2011 IL WC Act Amendments?
· To provide a level of uniformity for our hearing officers in determining PPD awards;
· To eliminate some of the randomness and/or political smell that arose with the occasional but shockingly high PPD ruling;
· To mildly reduce the value of PPD awards and save Illinois business and governments money; and
· To bring IL WC more in line with the 40 or so states that employ AMA Guides for Impairment.
Will You Save Money if You Use/Obtain Impairment Ratings in your IL WC Claims?
Our answer is unequivocally yes. IL WC Arbitrators and Commissioners are required by law to consider them as part of the hearing process. We are seeing solid results whenever impairment ratings are provided for their consideration. We have not seen any recent reported decision where PPD was awarded without careful consideration of a proffered rating. We aren’t saying the Arbitrators/Commissioners will award PPD at the level of the impairment rating but we assure you they will consider it.
If you aren’t sure, that is precisely why we feel Petitioner/Plaintiff lawyers (and some liberal or “cross-over” defense firms) dislike ratings and don’t want treating doctors to readily provide them, as a matter of course.
Please also note in non-litigated claims, we have had success in getting pro se settlements approved for the impairment rating, if you are smart enough to get one.
Who Can Prepare an AMA Rating in an IL WC Claim?
Section 8.1(b) of the IL WC Act requires the report be prepared by a physician licensed to practice medicine in all of its branches. Therefore in Illinois, non-physician medical providers such as chiropractors are not permitted to provide impairment ratings. The Act does not require the licensed physician be certified to perform an AMA rating. Note AMA Guidelines themselves do permit impairment evaluations from “medical doctors who are qualified in allopathic or osteopathic medicine or chiropractic medicine.” This provision is contrary to the plain language of IL WC law.
To the extent the practicing bar understands the relatively new concept, an impairment rating by a “certified” physician should carry more weight than one by a “non-certified” doctor, although such certification or training is not mentioned or required by either the AMA Guides or the IL WC Act. We haven’t seen any decisions that directly address the value of impairment ratings in relation to the physician’s rating certifications.
Can/Should a Treating Physician Perform an AMA Rating?
Well, it is kind of funny to compare our nutty state to lots of other states. As an example, if you look online, you will note the State of Colorado has a specific provision about treaters providing ratings:
Rule 12-2 PROVIDER RESPONSIBILITIES
(A) Where the authorized treating physician has determined that the injured worker is at maximum medical improvement (MMI) and has not returned to his/her pre-injury state, physically and/or mentally, the treating physician shall determine or cause to be determined a permanent medical impairment rating in accordance with this Rule 12.
This exemplifies the fact AMA impairment ratings are customarily provided by treating physicians in many other states. Please also note the Indiana WC system allows the treating physician who is chosen by the employer can use AMA Guidelines to determine the injured worker’s PPI or impairment rating.
The AMA Guides themselves indicate treating doctors may have concerns about providing AMA impairment ratings for precisely the opposite situation to which Illinois Plaintiff/Petitioners attorneys object. The Guides indicate a treating doctor is not “independent” and therefore, their determinations “may be subject to greater scrutiny” because they are considered biased in favor of the patient. The AMA Guides indicate the “physician’s role in performing an impairment evaluation is to provide an independent and unbiased assessment of the individual’s medical condition, including its effect on function and of limitations to the performance of ADL’s.” The Guides’ explicit acknowledgment of the bias of treating physicians in favor of their patients would appear to indicate Petitioner/Plaintiff attorneys in this state would want treaters to provide them.
Can/Should the Workers’ Compensation Insurance Carrier/TPA Request an AMA Impairment Rating From the Treating Physician?
Our advice to all of our clients is to start every WC claim with three things, where applicable. Be sure to:
1. Investigate the accident fully;
2. Get a signed HIPAA-GINA compliant release from the injured worker; and
3. Give them your IL WC PPP required notice if you have a WC PPP in place.
If you have completed numbers 1 and 2 above, you have no concern about asking a treating doc for an impairment rating when the patient is at MMI. You can then use the rating to seek to settle the matter on a pro se basis—the defense team at KCB&A still handles such settlement approvals at favorable flat rates—if you have interest, send a reply.
If you don’t have a signed HIPAA-GINA release or Petitioner/Plaintiff’s attorney withdraws the release in whole or in part, you may need to get an impairment rating from a physician other than the treater.
Admissibility of AMA Ratings
While an AMA rating is provided for by the IL WC Act, the issue of admissibility remains to be determined. If a treater provides a rating, it might be admitted as part of the larger medical record. However, the rating is clearly created “in anticipation of litigation” and therefore depositions may be required if a hearsay/foundation objection is voiced. However, it is our opinion depositions over impairment ratings are a complete waste of time for both attorneys because there is so little to ask the rater and we don’t see any doctor performing a rating later changing their overall opinion/rating. We will have to take a wait and see approach on this one.
If you need help with getting an impairment rating on any IL WC claim, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Gotta Love OSHA—They Hit Railroad with $350K+ Fine for Terminating Conductor Who Admittedly Did Not Follow Same-Shift Accident Reporting Rule.
Editor’s comment: We have advised our readers we have clients and others who have “same-day” or same-shift accident reporting protocols. The way the concept works is the employer requires urgency in accident reporting protocols to insure they learn of any accident or injury occurring in the workplace at the earliest opportunity. In this fashion, they can address the dangerous situation resulting in injury.
Some of our clients have done this in union environments where the unions will join with the employer to insure the union membership knows the rules and follows them. If an employee is late in reporting, the workers’ comp claim is investigated and benefits may be paid. However, if the accident is reported late, the employee is terminated, not for the fact of the accident but for late reporting.
Our concern when we first heard of this concept was the potential for litigation due to the termination. OSHA obviously received a beef about such a termination from a railroad conductor for Wisconsin Central Railway. There is no question the conductor was within his 60-day probation period when injured in Manitowoc, WI. It appears from the facts the injury was reported on a “same-day” basis but not during the same shift. On the last day of probation, the conductor was issued a removal-from-service letter rejecting his application for employ. The railroad asserted he violated an enforced work rule, leading to non-retention.
OSHA awarded $217K in back pay, $60K in compensatory damages and $75K in punitive damages. The railroad is also required to reinstate the worker, pay attorney’s fees and give out whistleblower rights information to its workers. The matter may be appealed by either party.
Please note this is not a published ruling. The reasoning for the OSHA determination is not available that we can locate on the web. We have no idea if OSHA is going to continue to provide such anti-business rulings in other work settings. But we do consider this a “word to the wise” about your accident reporting protocols.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Fall-Down Drunk Claims Adjuster Denied WC Benefits by Washington State WC Court.
Editor’s comment: A claims adjuster will not receive workers compensation benefits for a head injury he mysteriously suffered while on a Texas beach because he was intoxicated at the time of his accident, a Washington state appeals court has ruled. Rudolph Knight was a Seattle, WA-based catastrophic claims adjuster for State Farm Mutual Automobile Insurance Co. In 2008, he was sent to work on assignment in Galveston, Texas after the area was hit by Hurricane Ike. If you aren’t aware, Galveston Island is a great vacation and party location, rivaling New Orleans and many tropical beach locations.
On a day Mr. Knight wasn't scheduled to work, he alleged he drove 30 miles from his hotel to Galveston Island to supposedly survey the six-year-old hurricane damage, according to records. While driving, he believes he saw a group of men riding dune buggies on a beach and stopped to watch them. That was the last memory Mr. Knight had before his wife visited him in a Texas hospital 24 hours later.
Mr. Knight's wife indicated she spoke to him by phone while he was watching the dune buggy riders, and she heard the men and machines approach him, records show. A few hours later, paramedics responded to a 911 call and found Mr. Knight lying in the surf mumbling “help me.” Mr. Knight had small lacerations and some bruising, and was treated for hypothermia and intoxication, records show. Mr. Knight told paramedics he had not used drugs, but he “had a lot of alcohol to drink.”
Police and doctors noted Mr. Knight smelled strongly of alcohol after he was found, records show. Police did not further determine how Mr. Knight was injured and did not take any witness statements from any of the other drunks on the beach where Mr. Knight was found.
We are happy to note the Washington court did not sweep this obvious bender into WC coverage with the two recent legal paths sporadically used by the Illinois WC Commission or reviewing courts of “traveling employee” or “street risk.”
We appreciate your thoughts and comments.
Synopsis: Important Ruling for WC Plaintiff/Petitioner Attorneys on Attorney Fee Splits.
Editor’s comment: If Plaintiff/Petitioner Attorneys have an agreement to divide attorney’s fees, you need to take a look at this ruling.
In Donald W. Fohrman & Associates, Ltd. v. Marc D. Alberts, P.C., issued March 14, 2014, two firms had a dispute over attorney fee-sharing based on claim referrals. The record indicates Fohrman’s office was sending med mal referrals to Defendant Alberts. It appears the attorney-client agreement didn’t confirm the participation of both attorneys in the litigation.
The Circuit Court dismissed the claim on motion. The Appellate Court ruled the lower court properly entered summary judgment in favor of Defendant attorney to whom cases were referred, as attorney-client agreement did not comply with Illinois Supreme Court Rule 1.5(e) of our Rules of Professional Conduct, as it did not inform clients of details of attorney responsibility and how fees would be split, as the Rule requires. The failure of the documentation to demonstrate compliance meant the referral agreement and attorney liens were thus unenforceable.
The Illinois 1st District Appellate Court ruled public policy places rights of clients above and beyond attorneys' remedies in seeking to enforce fee-sharing arrangements. We assure our readers the same concepts apply to workers’ comp claims.