5-25-15; IL WC Legislative Reforms Blocked in IL House But Battle isn't Over; Dr. Fletcher on Proposed IL WC Medical Fee Schedule Changes; Using Cell Phones to Informally Video Depositions and more
/Synopsis: IL WC Legislative Reforms Blocked; Gov. Rauner Remains Irresistible Force/Immovable Object—Can Our WC System Get Out of His Crosshairs?
Editor’s comment: New IL Governor Bruce Rauner announced plans to introduce legislation on workers' compensation, government restructuring and term limits. The Illinois House of Representatives debated and voted against workers compensation reform but did not take up tort reform. The Illinois House debated and voted on four workers' compensation amendments. The first three failed and the fourth passed. Here are details about the proposed legislative amendments:
Ø Amendment 1 added a "major contributing" cause standard to evaluation of accidental injuries under IL WC. It failed to pass on a vote of 0-69-38.
Ø Amendment 2 would have changed AMA guideline usage in determining permanency; it may have caused much lower awards. This also failed 0-69-38.
Ø Amendment 3 was a 30% IL WC medical fee schedule cut. This failed to pass with a vote of 0-69-37.
Ø Amendment 4: WC insurance rate regulation and safety premium and self-insured fee reductions. This was adopted by the House 68-0-39.
Most of the House Amendment on insurance rates was insurance-ese. See below--this is the major proposed change to the IL WC Act for the IL WC community to note—remember it has to be passed in the Senate and signed by Gov. Rauner to become law:
(820 ILCS 305/4e new) Sec. 4e. Safety programs and return to work programs; recalculation of premiums and waiver of self-insurers fee.
(a) An employer may file with the Commission a workers' compensation safety program or a workers' compensation return to work program implemented by the employer. The Commission may certify any such safety program as a bona fide safety program after reviewing the program for the following minimum requirements: adequate safety training for employees; establishment of joint employer-employee safety committees; use of safety devices; and consultation with safety organizations. The Commission may certify any such return to work program as a bona fide return to work program after reviewing the program for the following minimum requirements: light duty or restricted duty work; leave of absence policy; and full duty return to work policy. The Commission shall notify the Department of Insurance of the certification.
(b) Upon receipt of a certification notice from the Commission under this Section related to an employer that provides workers' compensation through an insurer, the Director of Insurance shall immediately direct in writing the employer's workers' compensation insurer to recalculate the workers' compensation premium rates for the employer so that those premium rates incorporate and take into account the certified program.
(c) If any workers' compensation safety program or a workers' compensation return to work program implemented by a self-insured employer is certified under this Section, the annual fee under Section 4d of this Act is waived for the self-insured employer as long as the workers' compensation safety program or a workers' compensation return to work program continues. The self-insured employer shall certify the continuation of the program by each July 1 after the waiver is obtained.
What we consider ironic and embarrassing about this proposed change to the IL WC Act is the two biggest WC programs in our State that don’t have either a safety program or a return to work program are the State of Illinois itself and the City of Chicago. Both governments are literally tens of billions of dollars in choking debt. We hope Governor Rauner, Senate President Cullerton and House Speaker Madigan along with Chicago Mayor Rahm Emanuel and Alderman Ed Burke follow the concept espoused in this new proposed WC amendment and initiate safety and return to work programs and save hundreds of millions of dollars. The defense team at KCB&A is happy to consult with these governments and any of our readers on getting this into place at no charge.
The Madigan-Hates-Millionaires Tax Gets Postponed—We Hope It Dies In the IL Field of Bad Anti-Business and Anti-Jobs Ideas.
Speaker Madigan’s millionaires tax suffered a near-defeat in the Illinois House last Thursday. In a victory for the business community, specifically small business and entrepreneurs, the IL House was unable to pass HJRCA 26. It would set up a general election vote in November 2016 on whether to add a 3 percent surtax on incomes above $1 million. As he saw his pet project going south, Sponsor House Speaker Michael Madigan postponed consideration, so it could come up for another vote. The IL State Chamber calls it a tax on being successful and we agree fully with that sentiment. We also note Speaker Madigan claims the money raised is going to be “ear-marked” for education. If you are reading the Illinois newspapers and other media outlets, you may note the Chicago Tribune highlighted another type of fake pension abuse among our educators in a front-page article where taxpayers are being forced to pay for school districts that dramatically boost salaries in the last year or so of a retiree’s career to insure they get the highest possible fake pension from state government and also force IL taxpayers to also pay significant penalties for what the school districts are doing in tricking up the pensions. Along with recent news articles documenting numerous financial abuses in our colleges and universities, starting with the College of DuPage, we aren’t as excited to hear the supposedly soothing legislative mantra that over a billion dollars in new increased taxes will go to “education.”
Please note this massive new state tax might end any interest star athletes like Chicago Bears Quarterback Jay Cutler, Chicago Cubs Pitching Star Jon Lester or Chicago Bulls Guard Derek Rose from living in our state. By our math, the cost of this tax to such athletes would be over $1.2M each year of their short careers. In our view, you can buy a pretty nice estate in Merrillville, IN or Racine, WI with $1.2M a year and avoid some or all of the new proposed tax. In our view, such a tax would basically empty out Trump Tower and the successful folks that reside there—one wag in our office asked that if he is successful in “taxing the successful,” Speaker Madigan should have Trump Tower dug up and carefully moved across the state border. We would prefer to have stock brokers, surgeons, entrepreneurs and lots of hard-working and successful people want to live in our state and not give them an enormous impetus to leave and bring their businesses and jobs with them.
This also leads to another reason we are chagrined and disappointed with Speaker Madigan—he clearly understands to raise our taxes in such fashion, he needs to change the IL Constitution. He is more than willing to fight to do so to try to fund the multi-billion-dollar mistakes he has made in the forty-plus years he has been in our General Assembly. When it comes to reforming our laws on the hilariously underfunded fake pensions that are choking IL government, Speaker Madigan proposed and enacted two laws to reform the fake pensions and post-retirement healthcare costs for state workers. His daughter, Lisa Madigan is a diligent and brilliant jurist who basically was run out of court twice with overwhelming and unanimous Supreme Court majorities who all agreed such legislative changes from her father violated the IL Constitution. The only way to reform fake pensions and growing health care costs for state retirees is an emergency Con-Con or Constitutional Convention or a proposed and sweeping amendment to the IL Constitution. If anyone can do that, Speaker Madigan can—the question is will he?
Please Note This is a Respite But the Work Isn’t Over In Bringing IL WC Costs Down
We caution our readers on both sides of the WC matrix—next year in October 2016, the Oregon WC Insurance Premium Ratings will be published and literally everyone in this industry and our legislature is going to be watching. It is our strong hope new IWCC chair Joann Fratianni and her team remain sensitive to the needs and wishes of the IL business and government community. IL WC needs to be in the middle of the United States and competitive with all states around us. We also hope the great folks who regularly meet and discuss/debate judicial issues with the local Circuit Court judges who handle/decide WC claims and the august members of the IL Appellate Court, Workers’ Comp Division get the same message.
Right now, Governor Rauner has a political “war chest” of at least $34M and he is ready, willing and able to use it to create an IL legislature in his image and likeness in the next seven years or so. Bruce Rauner is a brilliant manager and executive. He is used to getting his way and is going to go to great lengths to improve our state. If and when he gets control of the IL General Assembly in either two or four years, we hope workers’ comp is a distant memory for his whole team, as IL WC should already be reasonable, professional and competitive in considering claims and doling out the crucial benefits injured workers need.
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Synopsis: Dr. David Fletcher – Wrong Focus on IL Workers’ Compensation Debate
Editor’s comment: This is a guest article by Dr. Fletcher who is a businessman, physician, scientist and workers’ comp professional. It is being published with his permission and without any changes.
The State Journal-Register has been covering Gov. Bruce Rauner's plan to slash workers' compensation costs as part of his heavily self-touted re-engineering plan for Illinois. So far, the debate has ignored the doctors' perspective, including the burden of insurance carrier micromanagement of medical services, the costs of practicing medicine in Illinois, effect on patients because of a lack of access to necessary care, and lack of strategies by employers to realize cost savings by focusing on prevention of workplace injuries.
The Governor believes the fee schedule for medical payments in Illinois is higher than many other states, which, depending on how you define "many," is simply not accurate. In reality, "Medical payments per claim in Illinois were closer to the middle group of states," according to the April edition of the Workers' Compensation Research Institute CompScope Benchmarks. The legislature first imposed the medical fee schedule upon doctors in 2005, resulting in a 24-percent reduction in medical charges. The schedule was reduced again in 2011 by an additional 30 percent, and as a result of these changes the Oregon Department of Consumer and Business Services concluded Illinois experienced the steepest drop in medical costs in the nation.
The National Council on Compensation Insurance also concluded medical costs do not constitute the majority of Illinois workers' compensation expenditures. Despite these dramatic reductions in medical costs, workers' compensation insurance carriers continue to price-gouge with premiums increases rather than pass any of the savings onto Illinois employers. Workers' compensation insurance is now so profitable that 333 different insurers currently sell workers' compensation insurance in Illinois. The paperwork and other demands of workers' compensation far exceed that for privately insured patients; additional fee cuts to physicians will force medical providers to stop accepting workers' compensation patients. Immediately following the implementation of the 2011 workers' compensation reform, the Illinois Workers' Compensation Commission recognized that patient access to critical care was dwindling as a direct result of the 30-percent medical fee reduction, which dropped routine office evaluation and management visits well below Medicare rates.
On July 16, 2014, the IL WC Commission voted 9-0 to immediately raise evaluation and management office visit codes to at least Medicare levels to reverse the crisis ensuing from doctors' offices basically washing their hands of such patients because they cannot afford to treat them. In essence, Rauner is quick to blame workers' compensation industry shortcomings, with the message that benefits must be slashed to entice businesses to invest in the state of Illinois. His stance, on the contrary, should be focused on insurance industry oversight, as well as on employer awareness initiatives that promote wellness in the workplace and focus on the prevention of injuries.
The insurance industry offers a variety of reasons why premiums have not gone down. Enough with the excuses. The governor should not require further sacrifices on the backs of the injured worker and the medical community taking care of these workers without demanding insurance companies reduce premiums to reflect the prior reforms.
Editor’s note: One aspect of the recent proposed WC legislation that was kept under wraps until the very end of the debate were the proposed changes to the IL WC Medical Fee Schedule. If there are strong justifications to again review and modify the schedule, we hope there will be more debate and discussion on how to best do so.
We appreciate your thoughts and comments. We are happy to relay your best thoughts to Dr. Fletcher for his response.
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Synopsis: The Care and Feeding of Great Physicians in Medical Depositions—Can They Informally But Openly Videotape a Deposition with Their Cell Phone?
Editor’s comment: We hear one complaint over and over from physicians who have been deposed in litigation. They are tired of being confronted, yelled at and sometimes personally abused by attorneys on both sides of the fence. We want great physicians, surgeons and scientists to participate in litigation and we do not want them to be the subject of the slightest ill-treatment of any kind.
If an attorney participating in a medical deposition starts to raise their voice, ask insulting questions or otherwise act abusive, we are recommending the physician or any expert take out their cell phone, confirm for everyone in the room and on the record they are going to video the event, then stand the phone up on the table and make a video recording of the deposition. The recording could be saved to the physician’s complete file.
As another approach, attorneys on both sides could openly and informally video the deposition with the caveat they keep the recording in their own file, as all of it would be covered under HIPAA-GINA.
Whatever happens, we feel the request for videotaping should be in the notice of deposition and/or part of the agreement to take a deposition under the IL Rules Governing Practice before the Workers’ Compensation Commission. We suggest doctors include the request in their billing or correspondence confirming the setting of the date/time/cost of the deposition.
We are sure cell phone recordings would save the increased cost of needing a formal videotaped deposition but should also cause the attorneys to stop or end any abusive behavior, as there would be documentation of it. We feel the attorney who has retained the expert to be deposed should caution their opponent not to act in an abusive manner or potentially face sanctions.
Some of the abusive tactics we have seen in depositions are
• An attorney continually telling the deponent only to answer “if they know” the answer—this is a tactic designed to coach the witness not to answer;
• Frequent or endless objections to every question;
• Instructing a witness not to answer important questions;
• Repeatedly going off the record to delay;
• Asking the deponent the same question over and over again.
By informally documenting all of this with an inexpensive cell phone video, it would be much easier for a Circuit Court judge or Arbitrator to rule on the behavior of the parties conducting the deposition. We would love to hear the best thoughts and ideas from our readers on this approach to medical or other depositions.
We appreciate your thoughts and comments.