Synopsis: Work Comp Insurance Coverage in One State May Now Mean Automatic WC Coverage in Other States?? Check Those Policies—Call Your Broker!
Editor’s Comment: The Illinois Appellate Court ruled an insurance carrier for an Indiana-based ambulance company was insured for a worker's claim arising from a motor vehicle accident in Illinois. In Continental Western Insurance Co. v. Knox County EMS, No. 1-14-3083, issued March 31, 2016, Defendant Knox County EMS is an ambulance service provider based in Vincennes, Indiana. The ruling indicated their ambulances sometimes sent workers across the Indiana state line into Illinois to pick up patients receiving treatment in Indiana. There appears to be no dispute one of its employees was seriously hurt in a motor vehicle accident on such a trip in Illinois.
We tell our law students and readers the IL WC Act covers any accident occurring within the boundaries of our state. We also let our students and readers know you can pursue work comp claims in two or three states simultaneously. Following those models, the seriously injured employee and her husband filed a work comp claim in Illinois and Indiana. Her employer, Knox tendered defense of the claims to Continental Western Insurance Co., its work comp insurance carrier. Continental defended the work comp claim under a reservation of rights while accepting IN WC coverage and disputing IL WC insurance coverage.
Continental then filed a declaratory relief action in the Cook County Circuit Court, seeking a determination on whether it owed a defense and payment of any IL work comp award or settlement to the employer, Knox. The Circuit Court judge granted summary judgment in favor of the insurance carrier, Continental, finding the carrier's policy did not extend coverage to Knox's operations in Illinois.
The insurance policy in question expressly provided it would cover claims in Indiana only, and no other state, unless three conditions were met.
· The first was the worker claiming WC benefits was hired under a contract made in Indiana, or if the employee was primarily employed in Indiana. This condition was unquestionably met.
· The second was the employee was not claiming benefits in a state where Continental had other insurance coverage, or the employee was not claiming benefits in a state where Continental was required to have "separate insurance coverage."
· The third condition was the employee was temporarily in the other state. Again, this question was unquestionably met.
The trial judge found the Illinois Workers' Compensation Act required the employer Knox County EMS to purchase WC insurance coverage in Illinois, and because Knox County EMS didn't have the needed WC coverage in Illinois, Continental wasn't required to provide coverage. The employer appealed.
The Illinois Appellate Court said the Circuit Court judge had jurisdiction to decide whether the Continental WC insurance policy provided coverage for WC claims in Illinois. As a Circuit Court judge is "more than capable" of interpreting this requirement without any need for the specialized expertise of the IL Workers' Compensation Commission, the Appellate Court said the IL WC Commission did not have primary jurisdiction over the coverage dispute between Continental and Knox County EMS, and the trial judge properly ruled on the declaratory judgment action.
The appellate panel noted the Illinois Workers' Compensation Act requires an employer to insure its “entire liability" for workers’ compensation coverage, either through the self-insurance system, through a licensed carrier authorized to do business in the state or by "some other provision, satisfactory to the IL Workers' Compensation Commission." However, the Appellate Court ruled the trial judge arrived at the wrong conclusion. The decision reasoned the Illinois Workers' Compensation Act provides employers with three choices on how to insure "all of his liability." The employer can self-insure, get coverage from a carrier or come up with an "other" solution acceptable to the IL WC Commission. If the employer choses to get insurance from an insurance carrier, the decision said there was no requirement the WC coverage be only for injuries occurring in Illinois.
As the Continental policy provided coverage in Illinois if the three enumerated conditions were met, and Illinois law did not require the employer Knox County EMS maintain a "separate" WC insurance policy for its liability in Illinois, the Appellate Court ruled Knox County EMS satisfied the requirements for Continental to provide WC coverage for claims in Illinois.
With respect to the members of the Appellate Court, our concern with such a complex and confusing ruling is the unquestioned fact it appears to us this insurance carrier clearly intended to charge for and offer WC coverage in Indiana only. We do feel they could have made the terms of coverage a lot clearer. We feel confusion may ensue as to when coverage is going to be bound and when it is not. If the employer was going to send employees to other states with any regularity, such additional coverage needed to be priced and paid for. The debate created by our penultimate reviewing court appears to turn on what “entire liability” and “separate” insurance coverage for other states might be—they rely on a State of Maryland ruling to decide the complex issue. We are fairly certain no underwriting nor premiums were charged for the expensive IL WC coverage this court is now requiring to be present for combined IL/IN WC losses. We assume the carrier is going to try to get this claim to be reviewed by the IL Supreme Court on this ruling—we will have to wait and report what happens.
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Synopsis: The IL WC Community Mourns the Passing of Two Industry Stalwarts--Dr. George Cooper and Attorney Jack Cunningham.
Editor’s comment: When your editor started practicing law a couple or three decades ago, everyone on the defense side used Dr. George Cooper and the Petitioner side was Dr. Hyman Hirshfield (who passed in 2010) and later Dr. Barry Lake Fischer (who had a colorful career in other ways). It seemed almost every case on the defense side had Dr. Cooper for the defense and Drs. Hirshfield or Fischer for Claimant. All of them had distinctive IME report forms and unique typewriting.
We note Dr. George J. Cooper was born in 1914, two years after the HMS Titanic sank. Not kidding. He lived to a lively 102 years of age. He started to practice medicine during the Great Depression!
Jack Cunningham, J.D. was a U.S. Navy veteran of the Korean War. Jack practiced law for more than 50 years and initially worked for Zurich Insurance as an investigator and then at Wausau/Nationwide as a trial compensation attorney along with his private practice. He was lead in-house defense counsel for Wausau/Nationwide Insurance. Jack trained and counseled many current IL WC attorneys on both sides of the matrix. He was a mentor to your editor and I learned a great deal from this quiet, hard-working and intelligent man.
Jack Cunningham had some control of the decision to appeal Wausau/Nationwide claims. Back in the day, IL WC appeals went from the IL WC Commission to the Circuit Court then directly to the IL Supreme Court. Jack became famous for taking the most IL WC claims all the way to the IL Supreme Court.
He used to brag he handled so many IL Supreme Court decisions, it was hard to count--many of his appeals were back to back to back. He claimed he held and still holds the record as the attorney with the most IL Supreme Court decisions of all time.
The rumor at the old Industrial Commission was the IL Supreme Court got so tired of Jack Cunningham showing up to argue cases, they created the five member IL Appellate Court, WC Division so the cases first had to go to that interim reviewing court for a ruling and then the matter had to be certified by the Appellate Court for the Supreme Court to hear it and the Supreme Court had to accept the appeal. No one knows if the rumor has any merit but we assure our readers our state Supreme Court did enact that rule.
Because of this carefully tailored Supreme Court Rule, we feel no one is ever going to touch Jack Cunningham’s weird record. And probably no one should, as it remains part of Jack’s legacy in a great and singular way.
God bless and keep both of them. They are enmeshed in the history of workers’ compensation in this country and will be missed.
Synopsis: What We Feel is the Proper Charge for IL WC Medical Record Copying.
Editor’s comment: One has to wonder when all these doctors and hospitals are going to actually go digital! We still remember President Obama basically commanding digitalization of all medical records when he first ran for election way back in 2008. Guess that is another promised “change” he appears to have missed/skipped while on the golf course in the last seven years.
Some folks adhere to the odd IL WC Appellate Court ruling in Clayton v. Ingalls Memorial Hospital to send IWCC subpoenas with mileage checks for witnesses to ask folks to come to the IWCC with original records. We remind our readers a mileage check for a witness has little to do with copying costs for medical records. If you need more information on this concept, send a reply.
From the IL State Comptroller’s website:
COPYING FEES ADJUSTMENTS
Fee Base 2016
Handling charge $20.00 $26.77
Copy pages 1 through 25 $0.75 $1.00
Copy pages 26 through 50 $0.50 $0.67
Copy pages in excess of 50 $0.25 $0.33
Copies made from microfiche or microfilm $1.25 $1.67
PLEASE NOTE: The Comptroller’s Office does not enforce this statute, and cannot give an interpretation or legal advice regarding any amounts charged. Additional laws, whether state or federal, may also affect the amounts that may be charged in certain circumstances.
This is from the IL Code of Civil Procedure 735 ILCS 5/8-2001(d) [Please note the IL WC Act doesn’t have a medical record copying charge listed—for that reason, we feel this provision of the Code of Civil Procedure covers such issues].
- The person requesting copies of records shall reimburse the facility or healthcare practitioner for all reasonable expenses, including the costs of independent copy service companies, incurred in connection with such copying not to exceed a handling charge for processing the request,
- and the actual postage or shipping charge, if any,
- plus copy charges.
- The facility or healthcare practitioner may, however, charge for the reasonable cost of all duplication of record material or information that cannot routinely be copied or duplicated on a standard commercial photocopy machine such as X ray films or pictures.
- Records retrieved from scanning, digital imaging, electronic information or other digital format do not qualify as microfiche or microfilm retrieval for purposes of calculating charges.
- For electronic records, retrieved from a scanning, digital imaging, electronic information or other digital format in an electronic document, a charge of 50% of the per page charge for paper copies listed above. This per page charge includes the cost of each CD Rom, DVD, or other storage media.
- Records already maintained in an electronic or digital format shall be provided in an electronic format when so requested. If the records system does not allow for the creation or transmission of an electronic or digital record, then the facility or practitioner shall inform the requester in writing of the reason the records cannot be provided electronically.
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