Synopsis: OMG-LOL—Great IL WC Statistical News; Some New IL WC Legislative Recommendations but Please Not Another Illinois Workers’ Comp Committee!!?
Editor’s comment: Great news for Illinois businesses, insurance carriers/TPA’s and government bodies—the IWCC’s 2014 Annual Report is out and indicates there has been a 19% drop in IL WC costs since 2011! There has been a 16% drop in medical costs for the most recent statistical period of 2010-2012. We truly consider this solid news for our defense clients and we expect more progress in the days/months/years to come.
We do feel the every-other-year report from the State of Oregon is a solid statistical comparison of where Illinois stands in relation to other states but please remember their analysis becomes stale as the years roll forward—their last analysis on WC insurance premiums are for research/statistics from 2013 and prior. We are certain IL WC will be much closer to the middle when the report from Oregon next year is issued. In contrast, this new annual report from the IWCC is dramatically more current and outlines scientifically significant news on great progress in our state’s WC system. Take a look online at http://www.iwcc.il.gov/annualreportFY14.pdf
Over the weekend, we also saw various new changes to the proposed IL WC reform legislation coming from the Republicans in Springfield. Once again, we like some of them but have issues with two main changes, as we outline below. The new legislation is HB 4248. You can review it only at http://www.ilga.gov/legislation/99/HB/PDF/09900HB4248lv.pdf
The Proposed Legislation maintains the prior Republican proposals on
Ø “Causation” or the requirement an accidental injury arises in a situation where the work is felt to be the major contributing cause of the deleterious and work-related medical condition—we feel this legislative change is unnecessary and could be easily and rapidly implemented on an administrative level;
Ø “Traveling employee” coverage is somewhat confusingly defined but is designed to insure a worker who is “traveling” is only covered for injuries or illnesses when they are actually working, engaged in a work-related risk and not on a paid or unpaid break—we do agree with this legislative effort to rein in the more expansive interpretation seen by some reviewing courts. We also reassert that such a statutory change would be unnecessary if the current statutory construction were strictly construed;
Ø Credit for any award or settlement under Section 8(d-2) of the IL WC Act.—again, we agree with this concept and hope injuries to the shoulder will again become loss of use of the arm and not loss of use to the body. Again, we feel our legislature is reining in the reviewing courts;
Ø Medical services covered under the IL WC Act are going to be cut 30% more on June 1, 2016—please note this reduction is infuriating physicians and healthcare givers across our state who provide care to injured workers. We understand it is designed to match what group healthcare providers pay in medical reimbursements—every doctor we have discussed this with affirms there are lots more charges and issues with providing work comp care and the legislation is matching apples to oranges. Many doctors may turn down WC claimants if the reimbursements are not sufficient to cover their growing costs. Please also note Dr. David Fletcher of SafeWorks has written numerous articles contesting the basis for these additional cuts.
New and solid legislative recommendations:
v No Impairment rating required for the Arb to write PPD. Not a major issue for anyone.
v Electronic claims for payment of medical care—we assume docs and hospitals will still be mad at our legislators and lawyers but this legislation does appear to be a step forward;
v State of IL and lots of government agencies and WC funds do not have to file WC appeal bonds—this clarifies what we consider to be a poorly reasoned ruling from our reviewing courts where they contradictorily found an injury claim legally wasn’t a work comp injury but then stripped out their ability to reverse the award due to the failure of the State to file an appeal bond for the fund it represented;
v WC Fraud investigation and recommendations for prosecution are moving to the IWCC from the inert and hilariously inept IL Dep’t of Insurance that never wanted to handle this any way; and
v The IWCC is supposed to get a slick new computer system with lots of new super-fast online stuff.
A new proposed IL WC Ombudsman Program
This concept is interesting but truly isn’t needed. If you grab a dictionary, you will note an ombudsman or public advocate is someone appointed with a degree of independence, who is charged with investigating and addressing complaints of maladministration or a perceived violation of rights. Here is the new proposed legislation:
Sec. 14.2. Workers' Compensation Ombudsman Program.
(a) The Illinois Workers' Compensation Commission shall establish the Workers' Compensation Ombudsman Program as a program within the Commission no later than July 1, 2016. The Ombudsman Program shall provide assistance to all regions of the State. The Ombudsman Program shall be staffed with personnel who are trained in techniques performed by ombudsmen and who are familiar with the Commission.
The Ombudsman Program may:
(1) assist injured workers with the use of the Commission's information portal;
(2) provide information to employers, employees, and medical provider with questions about workers' compensation fraud;
(3) assist injured employees with referral to local, State, and federal financial assistance, rehabilitation, and work placement programs, as well as other social services that the Ombudsman Program considers appropriate;
(4) respond to inquiries and complaints relative to the workers' compensation program; and
(5) serve as an information source for employees, employers, medical, vocational, and rehabilitation personnel, insurers, third-party administrators, and self-insurers.
(b) Individuals within the Ombudsman Program may not appear or intervene, as a party or otherwise, before the Commission on behalf of an injured employee, employer, or medical provider.
This Section shall not construed as requiring or allowing legal representation for an injured employee by the Ombudsman Program in any proceeding for the Commission.
Our concern with this program is the State already has an IL WC ‘Ombudsman’ and we don’t need another one. If you aren’t sure, her name is Joann Fratianni-Atsaves and she is the current IWCC chair. Joann is brilliant, tough and fair. There is no maladministration that might occur under her watch. She has lots of folks running around what we feel could be a smaller and streamlined agency who are currently doing good things—we suspect she has some of them acting as ombudsmen already. We see no reason for legislation to do anything outlined in the proposal above that can’t already be done. We recommend Governor Rauner call the great IWCC Chair he appointed and have her start doing all this stuff today/pronto.
WEARING IL WC Out
The final new proposal we have to make fun of is what they are calling the WEAR Commission. We aren’t sure which legislative intern came up with this idea but we hope the idea “wears off”—if you get the pun. The legislation seeks to create the Workers' Compensation Edit, Alignment, and Reform Commission, which shall be known as the WEAR Commission. The purpose of the WEAR Commission is to develop a proposed recodification of the IL Workers' Compensation Act.
We point out the IWCC is a ‘commission’ itself. The IL WC Commission has lots of boards, blue-ribbon panels and commissions underneath it. They have a:
1. WC Commission Review Board
2. Self-Insurers Advisory Board
3. Workers' Compensation Advisory Board
4. Workers’ Compensation Commission
5. Workers' Compensation Medical Fee Advisory Board
As we have repeatedly advised our readers the 2011 Amendments added a seventh committee/commission/blue ribbon panel named the Illinois State Workers' Compensation Program Advisory Board. That board has 13 members and it took about a year to get them empaneled. To our knowledge, they have never met, not even once. The problems they were appointed to attack were the hilariously high overpayment of WC benefits to Illinois state workers. Those problems remain today. This dysfunctional board is our main issue with the new WEAR Commission—are they going to meet and actually do anything?
In our view, if a proposed recodification of the IL WC Act is needed, have the nine veteran and knowledgeable members and the Chair of the bipartisan IL WC Commission handle the concept, hold hearings and propose it. We understand they are busy and hard-working folks but we know they are also devoted to their tasks. We don’t feel another “will-this-work-and-will-we-show-up” committee is a solid legislative concept. While it sounds good to the masses, it is probably all Springfield PR fluff.
We appreciate your thoughts and comments. Please post them on our award-winning blog at www.keefe-law.com/blog.
Synopsis: Iowa Supreme Court Rules Surveillance of Injured Workers Obtained by Employers and Insurers Doesn’t Have to Be Disclosed Prior to Hearing. Analysis by Dan Boddicker, J.D., A former Hawkeye and our Iowa WC Defense Team Leader.
Editor’s comment: Recently, the Supreme Court of Iowa decided the issue of whether the Iowa Division of Workers' Compensation correctly interpreted Iowa Code section 85.27(2) as overriding the work product immunity and requiring the disclosure of surveillance video of any claimant seeking workers’ compensation benefits before deposition in the negative. Their highest Court concluded Iowa Code section 85.27(2) is limited to health-care related privileges such as the physician-patient privilege and does not affect privileges and protections related to the litigation process such as the work product doctrine.
In Iowa Insurance Institute, et al v. Core Group of the Iowa Association for Justice, et al, No. 13-1627, June 12, 2015, the Iowa Supreme Court upheld work product doctrine immunity with regard to disclosure of surveillance video before a medical or lay deposition in its opinion which limited Iowa Code section 85.27(2).
The Iowa Insurance Institute case was started when Christopher J. Godfrey, Iowa Division Workers’ Compensation Commissioner, ruled on a petition for declaratory order concluding Iowa Code section 85.27(2) applies to surveillance materials and waives the work product privilege except to the extent that requested materials contain mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The Commissioner concluded employers or insurers must produce surveillance materials upon request from a claimant and may not withhold the materials until after deposing the claimant.
The Court noted the Iowa standard that if a document or tangible thing may fairly be said to have been prepared or obtained because litigation is foreseeable or ongoing, it constitutes work product. The Court agreed that in Iowa surveillance materials are protected as work product, at least initially. The Court stated that surveillance lose the status of protected work product once a determination is made that the surveillance will be used at trial.
The Supreme Court used statutory interpretation to interpret Iowa Code section as being limited to health care provider records and held the declaratory order of Commissioner Godfrey erroneously determined the Iowa Code section 85.27(2) applies to surveillance.
We consider this ruling to be favorable to Iowa business and government entities who can save surveillance until they choose to disclose it.
This article was researched and written by Daniel J. Boddicker, J.D. Dan can be reached for questions, concerns or discussion of Iowa workers’ comp, general liability and employment law at firstname.lastname@example.org.
Synopsis: Petition to Modify IL WC Award Doesn’t Block Claim for Judgment to Collect Undisputed Amounts. Analysis by Jim Egan, J.D.
Editor’s comment: The Illinois Appellate Court has ruled that the fact an injured workers’ petition to modify an award of benefits is pending does preclude the trial judge of jurisdiction to enter a judgment for payment of that award.
In a published decision, Sunrise Assisted Living v Banach, No. 11-MR-1348, the IL Appellate Court held the filing of a 19(h) petition is not a petition for review as considered by 19(g), which would bar a judge from entering a judgment on an award.
Claimant Banach worked for Sunrise Assisted Living and filed a workers' compensation claim after suffering a serious on-the-job injury in March 2007. An arbitrator determined she was entitled to temporary total disability benefits of $250.00 per week for 107 5/7 weeks; permanent partial disability benefits of 45% BAW totaling 225 weeks at the PPD rate of $225.00; $322,922 for her medical expenses; and $1,520 in interest. IWCC upheld the award, as did the Circuit Court and the Appellate Court. Sunrise then paid the award in three installments.
While the case was pending at the Appellate Court, Claimant filed a petition to modify the award due to an alleged worsening of her condition, requesting additional benefits. After employer Sunrise made payment, but before the Commission ruled on her modification petition, Claimant filed an application in the trial court for a judgment on the original award. She also demanded payment of an additional $56,395 as interest that accrued after the date the Commission upheld her award, until Sunrise paid her award.
Sunrise moved to dismiss the application for judgment, arguing the trial court lacked jurisdiction over the matter since Banach’s petition for modification was still pending. It also insisted it owed no additional post-award interest. The trial judge agreed with Sunrise's later argument and denied Banach's request for additional interest.
Analysis: In ruling the trial judge could not enter judgment on a workers' compensation award while the Commission was reviewing whether that award is proper, but judgment on the original award may be entered when the Commission is deciding whether a material change in circumstances warrants a prospective modification, The Appellate Court followed the 1978 ruling in Ahlers v Sears Roebuck Co., 73 Ill. 2d 259,262. In Ahlers, the Court held the prospective nature of a 19(h) petition was different from the subject matter contemplated by 19(g). Accordingly the Court held the Circuit Court judge properly found he had jurisdiction to rule on Banach's application for judgment.
The Court then went on to say that the judge properly found Banach wasn't entitled to additional interest because Sunrise had paid her award before Banach filed her application for judgment.
From a technical perspective, we remain concerned the petition to modify benefits doesn’t guarantee the current amounts due—it could be possible for the IL WC Commission to either increase or reduce the prior amounts at issue. This ruling seems to contemplate only an increase was possible.
This article was researched and drafted by Jim Egan, J.D. Jim can be reached for comment and questions at email@example.com. Please also consider posting questions and concerns on our award-winning blog.
Synopsis: New IL and IN WC Rate Sheets due out any day—sign up!!
Editor’s comment: Shawn R. Biery, J.D., MSCC and Kevin Boyle, J.D. issue new and updated workers’ comp rate sheets for the states of Illinois and Indiana, respectively. Feel free to sign up for this free and helpful claims information—we will send it as soon as you ask for it. Shawn can be reached at firstname.lastname@example.org. Kevin is at email@example.com.