5-8-2017; Do You Want A College Intern, Student or Layperson to Write Your IME Background Letters?; Another IL Police Officer/Firefighter Forced to Deal with Combined WC and Line-of-Duty Denial

Synopsis: Are You Sure You Want A College Intern, Student or Other Layperson to Write Your Claim-Changing IME Background Letters?

Editor’s comment: The defense team at KCB&A has been mildly surprised to note a recent development in our WC defense law practice. Along with the growth of IME vendors that select IME doctors and set appointments for national and regional defense clients, we note many of these vendors are now trying to “take over” the practice of doing IME letters. Our concern is the vetting of such persons at the IME companies—are they college interns, students, laypersons, as we have been told? Whose fault is it if an unnamed and questionably qualified individual messes up an IME background letter so a defensible and major WC claim turns sour?

We are sure a typical WC claims adjuster is swamped by the exigencies of this business. Most claims adjusters are overwhelmed with claims and don’t have time to do detailed and lengthy IME background letters, so they don’t particularly mind letting anyone else in the WC matrix provide that service for their accounts.

We have also seen nurse case managers try to take over this aspect of the claims process. With respect to the nurses we work with and who do a great job tracking and managing ongoing medical care, they aren’t lawyers and don’t have the legal background required to cover all the bases in a litigation dispute.

Please note just about every workers’ comp claim can turn into a major financial issue—I know of many WC claims where minor surgery went south resulting in lifetime benefits that can go into the six and seven-figures. Risk managers and claims handlers don’t spend the money on IMEs for fun and games—if you need a medical-legal expert on a WC claim, be sure you are getting value from the money you are spending.

We assure all of our readers, workers’ comp litigation is the only area where anyone would even consider using the help of an uneducated vendor or even the claims handler to write a background letter to a medical, technical or engineering expert.

For one simple example, in Illinois workers’ compensation, it is crucial to ask the IME expert if their opinions are voiced “within a reasonable degree of medical and surgical certainty.” Illinois case law requires such a statement if the opinions voiced are to be admissible. The reasoning behind that requirement isn’t truly pertinent other than to render an IME opinion admissible and something a claims handler can rely upon. Very few outside IME vendors or nurse case managers know of this requirement or include it in IME form letters.

We were recently advised a WC IME vendor was writing or had written the IME background letter on an important claim for our client. With respect, we have to advise we don’t agree with having the lead medical expert respond to “one-letter-fits-all” questions from a vendor that may or may not have any idea what IL WC law requires. We also wonder—is the IME vendor using a form letter as the background information for the expert?

We confirmed for the client and the WC claims handler, they hired this medical expert to get a solid opinion on their claim. The client will be paying a lot of money for the medical-legal opinions. In other claims, we have seen vendors/clerks/NCM’s ask questions or possibly not ask important medical-legal questions that may “cook” the claim and possibly render it indefensible by asking poorly thought-out questions in an IME letter.

I personally feel it borders on negligence to use many of the blanket “form” IME background letters that have sprung up across our industry—each WC claim is unique and a blanket inquiry almost never works to get the important opinions needed on a single WC claim.

It is hard to blame the medical expert who may be innocently responding to poorly drafted or form interrogatories, as the result of being asked important questions by someone that doesn’t know what to ask.

At a minimum, we recommend you allow your defense attorney to quickly review the IME background letter for medical-legal accuracy and cover all your defense needs for the litigation.

If you don’t do this, let the buyer beware! The IME may come back to bite you, “cook” the claim against you and/or a valuable medical-legal opinion may be rendered worthless due to missing information.

We are happy to assist in finalizing IME background letters in both litigated and non-litigated claims. Just email the letter with enough time to allow us to rapidly review and return it.

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

Synopsis: Another Illinois Police Officer/Firefighter Forced to Deal with Combined Workers’ Comp and Line-of-Duty Pension Claim Denial.

Editor’s comment: We are mildly amazed to see Illinois’ hyper-liberal Appellate Courts now turn down the third reported claim in a row by an Illinois firefighter or police officer. We are not sure this has ever happened in our State!

In Village of Alsip v. Portincaso, 2017 IL App (1st) 153167 (May 5, 2017) Cook Co., 5th Div., the Appellate Court considered a claim by an Alsip police officer in which the officer responded to a domestic relations beef and claimed he was injured.

We note, some years ago, the IL WC Commission panel heard the underlying WC claim involving this officer claiming injury in response to the domestic relations call. The IWCC panel denied the claim for lack of causal connection and their ruling was later affirmed after multiple appeals.

Following the denial, this ruling incorporated the longstanding legal term “res judicata” or what is also called issue preclusion for any related accident/injury claim about the event. Please note it is our experience Illinois’ reviewing courts don’t always follow longstanding rules, particularly when their decisions involve police officers and firefighters who have influential and politically powerful unions. Sometimes the rules get “bent” in this nutty state—not here.

The IL Appellate Court was asked to consider a claim for line-of-duty disability benefits that would require the Village to pay the officer line-of-duty disability benefits for the rest of his life.

In consideration of that claim, the IL Appellate Court reversed the Board of Trustees of the Police Pension Fund's award of a lifetime line-of-duty disability pension to Plaintiff.

The Court ruled the Board of Trustees of the Police Pension Fund abused its discretion in denying the Village of Alsip's petition to intervene. The Court ruled to reach the issue of res judicata or issue preclusion, the Village would need to have been made a party to proceeding, as it was the only party with an interest in raising the defense.

As the discreet question of whether Plaintiff had been injured during an arrest for domestic violence incident had already been answered and fully litigated in front of Workers' Compensation Commission, that litigation and outcome precluded any redetermination of whether Plaintiff was, in fact, injured during the domestic relations call. The Commission’s ruling was a final determination of such claim, rendering a contrary ruling impossible.

We salute the IL Appellate Court for adhering to longstanding and well-settled legal principles.

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