3-28-16; IL Supreme Court Vacates Alleged "Emergency" Response Benefit; Dr. Fletcher on 'Game Ready' Medical Billing Controversy; Arik Hetue, JD on IL Appellate Rule 23 Decision Survey and much more
/Synopsis: IL Highest Court Flips/Vacates Alleged “Emergency” Response Lifetime Taxpayer-Paid Health Care Award.
Editor’s comment: We agree with the august members of our Supreme Court but, for us, this one doesn’t pass the “Smell Test” for lifetime line-of-duty benefits for a police officer. We suggest our readers carefully review the IL Supreme Court ruling in Vaughn v. City of Carbondale, 2016 IL 119181 (March 24, 2016).
Plaintiff, a former city police officer, was on duty and while standing outside his patrol car in a parking lot, reached inside the car to answer a dispatcher's call on his police radio. While reaching in, he struck his head on the car’s door frame. It appears his doctors must have opined this action resulted in a compression fracture of the thoracic vertebra. We point out a “compression fracture” isn’t what your mom thinks is a ‘fracture,’ it is simply a shorter vertebra. In our opinion, diagnosing a vertebral compression fracture is very subjective—and relating any complaints and sequalae to it is even more scientifically and medically dicey. We assure our readers it is our view this sort of condition would not provide for lifetime taxpayer-paid benefits to folks in other states, outside this one.
In our reasoned opinion, this officer’s story doesn’t match the asserted result—he would have to lower his head and literally run into the car to create the force needed to measurably crush this middle-of-the-spine vertebra—before that happened, his much lighter and more delicate cervical vertebrae would first show medical concerns. If a “cover story” was needed, why not pick a concussion or some other difficult to measure medical condition? We note there is a physician mentioned in this ruling who indicated Claimant could return to police work, creating a dispute.
None of this would be a concern, if the enabling legislation made any sort of sense. In our state, all a police officer or firefighter has to do to get lifetime line-of-duty disability benefits is demonstrate they can’t be an “active” police officer or firefighter any more—in this kooky state, that is considered by our courts to be “catastrophically injured.” We respectfully disagree with our courts and feel they could just as easily require a police officer or firefighter to be disabled from all work before requiring taxpayers to foot the bill for police officers and firefighters for the rest of their lives at a significant and growing cost. We feel this interpretation makes many of these awards into “fake gov’t pensions.” Again, we don’t mean to be insensitive to police officers and firefighters who suffer severe, life-changing injuries and everyone agrees they can never work anywhere, ever again. But let’s please not compare such maladies to someone who appears to us to have suffered a boo-boo to the noggin and should be doing something for the millions in our tax dollars they may be paid.
Our legislative leaders know of the strained judicial interpretation and have never changed the definition to something more accurate. Unlike other states where common sense reigns, our “not-so-disabled” police and firefighters can and do get jobs and run businesses. Hundreds of them do so. It is completely “legal” if they first establish they aren’t able to do essential job functions of their former job. In other states outside Illinois, if a disabled police officer or firefighter works a regular job or runs a business, they consider them frauds and put them in prison. In Illinois, that sort of behavior is fully but sadly sanctioned.
It appears the IL Fifth District Appellate Court, one of the most liberal and pro-Plaintiff courts in the entire U.S., if not the world, provided this former officer a lifetime, line-of-duty disability pension for his sore thorax and that ruling is now final. We assure all of our readers based on our limited knowledge, this officer can and should be doing something for the money he is going to receive completely for free from now on—don’t they have 911 dispatch in Carbondale? Is there any chance his injuries are so crucial he can’t he answer the Carbondale Police Department’s phones and provide some value?
Either way, Claimant is going to get the lifetime pension benefit—he also sought lifetime taxpayer-paid healthcare for himself and his wife and family. Section 10 of the IL Public Safety Employee Benefits Act or PSEBA provides for lifetime payment of health insurance premiums for employee and family, when “catastrophic injury” occurred in response to what was reasonably believed to be an “emergency.”
Therefore in order to make the claim to get the added largess, Claimant asserted answering the routine radio dispatch call was an action in response to an “emergency.” If that was an “emergency,” we assert any and every police activity would also be viewed as emergent. There are some appellate rulings that appear to make the legal question of whether an action is an “emergency” is a subjective decision to be reached by the claimant—again, we feel that means every task performed by a claimant can and will be an “emergency.” As shocking as it sounds, the Fifth District Appellate Court found this every day activity of responding to any radio call to be an emergency!! Please note this award would cost most IL municipalities another $20-30K a year for the rest of this former worker’s life. The city attorney appealed.
In response, the IL Supreme Court unanimously ruled Section 10 of PSEBA was not applicable here, as there are no facts establishing any imminent danger to a person or property requiring an urgent response to the dispatch call. Moving forward, we strongly hope the lower courts adhere to this new ruling. If you want to read their unanimous ruling, click on the case name above.
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Synopsis: The ‘Game Ready®’ Difference: Cash Cow for Physicians or Legitimate Cost Savings for Employers in the Care of Injured Workers? Commentary from David J. Fletcher, M.D. of SafeWorks Illinois.
Editor’s comment: As physicians search for ways to increase revenue in the wake of extreme cuts in reimbursement for Workers’ Compensation services, the widespread prescribing of the Game Ready® system device for injured workers has created quite a commotion within the Illinois Workers’ Compensation Industry.
Many of today’s physicians have entered the Durable Medical Equipment (DME) rental business and, accordingly, prescribe these self-owned Game Ready® devices to their injured patients. While Game Ready® is a therapeutic device that can provide tremendous benefit to an injured worker, it has, unfortunately, earned a tainted reputation due to what is perceived as outrageous overcharging by some prescribing physicians. In Downstate Illinois, there has been widespread abuse of Game Ready® due to the simple fact there is no specific Healthcare Common Procedure Coding System (HCPCS) fee for the Game Ready® device, resulting in subjective, inconsistent billing practices. To explain, the reimbursement for the Game Ready® system defaults to 53.2% of billed charges, allowing for such extensive exploitation. The Healthcare Common Procedure Coding System (HCPCS) fee schedule used is E1399 DURABLE MEDICAL EQUIPMENT MISCELLANEOUS.
As an occupational medicine primary gatekeeper for injured workers, interacting with multiple Workers’ Compensation carriers, in which multiple referral specialists may become involved, I have become largely sensitized to the rampant billing manipulation by certain colleagues who rent Game Ready® devices. Here, is a recent E-mail message I received from an insurance adjuster in this regard:
I recently received the attached huge invoice from Game Ready® for a compression therapy unit ordered by Dr. X. This invoice came as a surprise to me because I was not asked to pre-authorize this equipment, like I normally would be. This bill, in excess of $13,000.00, is just for renting this equipment for 28 days. The rental of this equipment costs more than surgery fees. This is ridiculous. I am wondering if Dr. X has any idea how expensive this equipment is when he orders it? In the future, if Dr. X, or any of your physicians, wants to order DME appliances, I would appreciate it if you could seek authorization from the adjuster first, so that we can, then, coordinate getting the equipment through a vendor that can negotiate a price savings for us.
Likewise, I am aware that many pre-trial hearings have taken place before Illinois Workers’ Compensation Commission (IWCC) Arbitrators regarding this issue in conjunction with Utilization Review reports, which non-certify the treatment, presumably based upon cost factors as opposed to objective medicine treatment benefits due to physician price-gouging initiatives. Respondent attorneys have advised IWCC Arbitrators that, if the Game Ready® device is purchased online, the total price range for the equipment falls between $2,500.00 and $3,000.00 to own outright, resulting in the obvious question: why would an adjuster authorize, or carrier pay for, rental of the Game Ready® device at staggering prices, when, in reality, the Game Ready® device, if deemed reasonable and necessary, could be purchased for four-to-five times less? Essentially, the rate war encapsulated in the rental of the Game Ready® device has given rise to a finger-pointing dispute over unpaid bills, making it very difficult for Petitioner attorneys to settle cases.
What is Game Ready®?
Game Ready® is an intermittent pneumatic compression and cold therapy system. The device is considered a state-of-the-art recuperation assistance tool and represents the device that professional athletes use to rehabilitate from their work-related sports injuries. Game Ready® was established in 1997 by CoolSystems, Inc. and is the industry leader in active compression, cold therapy technology; injury treatment; and post-operative recovery. Please, refer to http://gameready.com for detailed device information. Game Ready® is clinically proven to help enhance recovery and reach key physical therapy milestones faster than conventional RICE (Rest Ice Compression Elevation) applications. It is also clinically proven to reduce pain and swelling, while simultaneously decreasing the use and/or enabling an earlier discontinuation of narcotic medications that may have undesirable side effects. It helps decrease the risk of deep venous thrombosis (DVT), shorten hospital stays, decrease the risk of permanent lymphedema (swelling in an extremity), reduce the duration needed for narcotic pain medication (as noted in the preceding paragraph), and shorten the length of time needed for physical therapy modalities, all of which save the carrier money in the long-run when the device is properly invoked and priced.
What is the Clinical Evidence that Game Ready® Works?
The Official Disability Guidelines (ODG), which are widely cited by Utilization Review organizations in the certification of medical treatment, recognize the value of Game Ready® In a 2012 Randomized Control Trial (RCT), patients treated with compressive cryotherapy after ACL reconstruction had more sufficient pain relief and less dependence on narcotic use than patients treated with cryotherapy alone (Waterman, The Efficacy of Combined Cryotherapy and Compression Compared with Cryotherapy Alone, Following Anterior Cruciate Ligament Reconstruction. Journal of Knee Surgery. May;25(2):155-60, 2012). In this study, patients undergoing ACL reconstruction were randomized to a cryotherapy/compression device (Group 1) or a standardized ice pack (Group 2). Of all patients, 83% of Group 1 discontinued narcotic usage by six weeks post-operative treatment, compared with only 28% of Group 2 (p = 0.0008). The conclusion of this study was the use of combined cryotherapy and compression in the post-operative period after ACL reconstruction results in improved, short-term pain relief and a greater likelihood of independence from narcotic use compared with cryotherapy alone.
To elaborate, I know, based on my own first-hand experience, Game Ready® offers tremendous healing results. In 2015, I underwent three major surgical procedures (a four-level lumbar fusion and bilateral hip replacements). I used Game Ready® on an around-the-clock basis for a couple of weeks after my surgical operations. For my two hip surgeries, I was in the hospital one night, when the average, usual hospital stay is two-to-three nights. Because of the Game Ready® device, I eliminated half of the normal hospital time allotment and did not require narcotic pain medication. The Game Ready® device also facilitated my rapid return to work for all three procedures. I only missed one week of work after my final right hip procedure, when most patients are off of work a minimum of five-to-six weeks. In ongoing surveys, over 97% of patients report Game Ready® provided a better post-operative recovery experience than a previous surgery using a different cold therapy. In my own experience with more than 500 patients, including myself, who have received Game Ready® on a post-operative basis, nearly 90% of these patients attest to them as one of the primary reasons they recovered and returned to work faster than they otherwise would have been able to.
What is a Fair Price for Game Ready®?
Again, I do not rent Game Ready® units to patients, but I do prescribe them and attempt to get them pre-authorized by carriers when I recommend Game Ready® intervention. In the past couple of years, it has come to the attention of CoolSystems, Inc. there are small DME companies (many owned by physicians) that have purchased Game Ready® units and are engaging in their own billing. Similarly, I am aware of several downstate Illinois physicians who have purchased available Game Ready® device on E-Bay (at an average cost of around $3,500.00). CoolSystems, Inc. does not permit the private sale of their devices and, lately, has actively prohibited the sale of units that are listed on E-Bay and other Websites to better control the application and delivery of their product. What CoolSystems, Inc. has found is that these private DME companies are posing as exclusive Game Ready® representatives and billing Workers’ Compensation carriers anywhere from $100.00-to-$300.00 per day for the Game Ready® equipment (as opposed to an average rental fee of $60.00 per day by CoolSystems, Inc., which is emphatic they are not partnering with these private DME companies who are not legitimate, authorized dealers). CoolSystems, Inc. and their authorized representatives obtain pre-authorization on every Workers’ Compensation claim order so the insurance adjusters and Workers’ Compensation carriers know ahead of time what the cost will be through mutual negotiation strategies. The usual cost of a 14-day rental, including the specific body part wrap (CoolSystems, Inc. makes anatomical wraps for nearly every body part, including the head), should be less than $1,000.00, which represents a major costs saving for the employer in the rehabilitation of work-related injuries when the rental is initiated through the manufacturer as opposed to individual physician-owned DME operatives.
Game Ready’s® manufacturer, CoolSystems, Inc. recommends Workers’ Compensation carriers conduct background checks in order to ensure they are working with authorized Game Ready® representatives. Carriers can always call Game Ready® at any time (1-888-426-3732) and ask them for guidance regarding local representation. There are competitor products to Game Ready® system; VascuTherm®, an iceless device, is one such unit. VascuTherm® touts the iceless feature as eliminating patient and/or caregiver stress. Moreover, this iceless equipment allows for consistent temperature, which enables prevention of thermal tissue damage, leading to expedient patient outcomes. The VascuTherm® unit is smaller, lighter, and more compact than Game Ready®. Like the Game Ready® system, though, VascuTherm has also been the subject of physician pricing criticism.
In summary, Game Ready® is a DME device that offers remarkable benefit for patient rehabilitation and fast-tracked recovery. Parallel to the issue of physician dispensing and medication compounding, some of my colleagues are engaging in greed-provoked behavior that is essentially ruining a viable treatment option that offers incredible patient benefits, by gouging Workers’ Compensation carriers with rental fees that sometimes exceed $400.00 per day. Bottom-line: I recommend getting Game Ready® device usage pre-approved by the carrier in two-week treatment intervals, as most patients only need 14 days’ of Game Ready® usage. (Editor’s note: Dr. Fletcher, the Medical Director at SafeWorks Illinois, has no financial interest in the Game Ready® System Device). Dr. Fletcher can be reached at
Game Ready®
David J. Fletcher - MD, MPH
Owner & CEO, SafeWorks Illinois
T: 217-356-6150 ext 2005 | M: 217-855-0979
E: dfletcher@safeworksillinois.com
A: 1806 N Market St, Champaign IL
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Synopsis: What has the IL Appellate Court WC division been doing this year with its Rule 23 Orders? Apparently, applying case law reasonably! Thoughts and Commentary from Arik D. Hetue, J.D.
Editor’s comment: We can’t respectfully agree with the continued usage of the IL Appellate Court Rule 23 Orders in today’s current technological climate which makes it extremely easy to publish opinions. In fact, we have argued for years now that these “unpublished” rule 23 orders, which are published on the Illinois Court’s website, are being used by both the Petitioner’s bar and defense attorneys as a guidepost for how the court is dealing with issues on a routine basis.
The original intent of the Rule 23 order is to resolve simple issues that have no bearing on other claims or issues – easy peasy decisions, affirming a Circuit Court decision which affirmed benefits, where the only issue is whether the argument was whether the decision was against the manifest weight of the evidence, and similar issues – this is the proper type of issue to be resolved under this arcane rule.
However, when there is a reversal of a lower court or the IL WC Commission, the case has merit and can be instructional to both sides of the bar on how to approach the underlying issues.
We have performed a complete review of the unpublished Rule 23 orders currently published on the Court’s website for 2016. What we found is a somewhat reasonable panel applying the law in a reasonable manner, for the most part.
The initial takeaway once again appears to be the fact a large amount of attorneys on both sides of the bar do not understand the concept of when a case is appealable – multiple orders were entered where the Appellate Court indicated it did not have jurisdiction to hear an appeal. Please remember, if the Circuit Court remands a case to the Commission, the case has to go down on remand before you can take it up to the Appellate court. Illinois considers a remand decision from the Circuit Court not to be final, as the Commission has to weigh in on the issues that were the basis of the remand before the order is appealable. You can save yourself or your client a lot of time and money by correctly handling the appeal process in this setting.
Secondarily, we are happy to report there was only one case where a denial of benefits was reversed – we are no pleased to report the Court stepped in with respect to weighing issues we feel are more appropriate for the Commission to determine, but the facts of the case did lend themselves to a finding of an award – this issue dealt with intervening accidents cutting off the causal chain – frankly, under current caselaw, unless you have the ability to affirmatively identify physical changes and/or a change in symptoms and/orneed for treatment, you are unlikely to win this argument. If there has been a surgical recommendation, and then an intervening accident occurs, but the same surgery is recommended, you better have some other evidence to argue the first surgical recommendation was not warranted. Which brings us to the next point…
Moving on to the “good stuff” – there was one claim in particular we feel should have been a true “published” opinion and therefor one that would become precedent – but it involves a simple concept: If you want to argue a point on appeal, you have to SUBMIT EVIDENCE AT TRIAL. Seems like a silly thing to remind people about doesn’t it?
In Monterey Coal Company v. Illinois Workers' Compensation Comm'n, a unanimous panel affirmed the Commission award of wage differential benefits, but modified the amount awarded to a lower number. At first glance, this appears to be a defense opinion, doesn’t it? Kind of, but there was one portion of the order that will cause your heart to palpate if you are on the defense side.
Claimant Steward was a coal miner for many years, over 30. He suffered from a range of allergies as a child, and had his first occupational exposure to vulcanized glue in 1976. The record indicated he had been on allergy medication or some sort of lung inhaler for the last 15-20 years of his work at the mine. His testimony confirmed he voluntarily quit work there, but he also noted it was due to his lungs not being able to take the strain any longer. Both before and after he left work for the mine, claimant was the local Union President, earning a small annual sum for his work in that role.
Claimant’s testimonywas the basisfor the determination he could no longer work in the mines. There were conflicting doctor’s opinions on the issue, but all of them agreed that continued work in the mines “could aggravate” his pre-existing asthma and lung issues.
The issue faced by the parties was one of wage differential benefits in this context. Respondent contended there was "no evidence claimant tried to find any suitable full-time employment" after he stopped working and he simply retired and took himself out of the work force. The Court noted when seeking a wage differential award there is no affirmative requirement that a claimant even conduct a job search. The Court also confirmed existing caselaw confirming claimant need only demonstrate an impairment of earnings and cited prior rulings confirming evidence of a job search is just one way to show impairment of earnings.
In Monterey Coal Company, claimant did not engage in a job search after he quit working for the employer, his testimony confirmed he was employed in positions which he testified were suitable given his health and work history. And here is the kicker - the employer did not present any evidence showing claimant's earning capacity was greater than the amount asserted by claimant at arbitration.
We tell all of our clients, if you are going into trial and wage differential is a potential outcome, if you do not have a vocational opinion and/or at the very least a blind labor market survey, you are effectively bringing a knife to a gun fight. Please remember, it may cost a little bit more to prepare for the hearing, but it can save you a whole lot of money on the back end of the claim.
This article was researched by Arik D. Hetue, JD and coauthored by Arik and your Editor in Chief. Please feel free to email comments to us at ahetue@keefe-law.com or ekeefe@keefe-law.com, or you can post them on our award-winning blog!