5-30-17; Can this be the Dummest IL WC Deform in the History of Work Comp?; Claimant Lawyer Has To Pony Up on Agreed Attorney Fee Split and much more

Synopsis: Can this be the Dummest IL WC Deform in the History of Work Comp? IL Senate approves the “State of Illinois Fake Mutual Work Comp Insurance Co.”

 

Editor’s comment: My amazing brother Joe Keefe has been in comedy for decades. Whenever it comes to politicians, he always recommends you vote for the funny ones—when politics eventually get boring and they always do, Joe points out you can always laugh at the funny politicians.

 

The IL Senate just passed a law that is certain to remain humorous, silly, dopey and goofy if you understand what they are doing. Please note this isn’t law yet and we hope if this bill gets past the IL House that Gov. Rauner quickly vetoes it.

 

To my understanding, ITLA or the IL Trial Lawyers Ass’n doesn’t like to be told workers’ comp in this nutty State is more expensive than it is in other states. To counter or block that news, they came up with the hilarious PR or public relations story that our IL WC system isn’t pricey, the Evil Demon is the profit-hungry WC insurance companies. The PR line from ITLA continues to claim there were some IL WC reforms in 2011 and WC costs may not have gone down. This supposed phenomenon was not because of the legislation or the IWCC administration but the problem was the supposed hoarding of profits by those inconceivably wealthy WC insurance carriers.

 

In short, the IL Senate has now approved/voted for a bill that would take $10M from the IWCC Operations Fund to start a silly and fake government-run WC insurance carrier to supposedly offer discount WC coverage and embarrass the heck out of the major players in the IL WC insurance community. When we stop laughing out loud, we assure you the concept is stupid and we hope it is put to bed sooner rather than later. We assure our readers this should be forever called the “State of Illinois Fake Mutual Work Comp Insurance Co.”

 

Please also note the annual budget of the IWCC is about $30M. Every nickel of that money comes from IL business and local governments. My sources agree the IL Workers’ Comp Commission that has about 150 employees would have to lay off about 50 workers if they are to loan/give up $10M or 1/3 of their annual budget to this dopey fake mutual insurance concept. Not sure if anyone in the General Assembly even thought of that issue but we assure you, in a State with about $14.5 billion in unpaid bills and around $130 billion in pension debt, our legislators are again playing with what I call “magic money” that supposedly comes from nowhere to be spent by them on nothing for nobody.

 

The main reason I think the PR line from ITLA is completely balderdash is most of my top clients aren’t actually “insured” for their work comp risks and costs. All moderate to major employers in Illinois and across the country don’t truly pay WC insurance carriers for “first-dollar” coverage. Almost any moderate to major employer has a significant claims deductible or what is called a self-insured retention where the insurance carrier actually is acting as an excess carrier when providing coverage. For risks/costs from $250,000, $500,000, $1M or even $2M, the WC insurance carriers are spending my clients dollars and not their own. They make a relatively minimal profit managing WC claims for the employers and, when they act like a TPA or third party administrators, any insurance profits are greatly limited.

 

Please also remember there are over 300 WC insurance carriers and TPA’s in this State. The competition is intense and they are all looking to cut costs and be the least expensive to win the annual RFP’s that bring in more business and cold cash. I don’t know any successful insurance carrier/TPA that doesn’t greatly overtax the solid and hard-working IL WC adjusters who make the tough calls on their IL WC claims. IL WC adjusters struggle with the Peter Principle that says the most work in any organization flows to the most competent worker—if an IL WC adjuster can do a solid job handling 125 litigated, lost time claims, they may receive as many as 200 or more claims (without matching compensation or bonuses) to insure their employers are getting the most money from their dedicated work.

 

On a related note, at one point, across the U.S., there were lots of state-founded and later state-run WC insurance companies like the proposed insurance carrier our IL General Assembly may create. The concept failed miserably, for the most part. Those WC insurance carriers were moved out of politics and kookiness of their respective state governments to be forced to succeed in the private sector or close their doors. Some of the state-run WC insurance carriers survived, lots of them closed their doors. Please remember the mega-carriers in U.S. work comp are multi-billion dollar international corporations. The IL General Assembly comically thinks they can use their clunky government model to compete with these well-tooled international organizations with an opening ante for our new IL Mutual WC Insurance Company of only $10M. The chance the IL General Assembly can outfit and run a competitive state-run WC insurance carrier and compete with the big boys/girls in our industry is impossible and humorous to even contemplate. Everything the General Assembly in this State touches turns to lead and drops to the bottom of the nearest river or lake. In my opinion, they are throwing away $10M and jeopardizing lots of jobs and the management of IL WC claims in doing so.

 

So why is ITLA pressing this phony PR line to the point of having their puppets in the IL General Assembly pass a law that will require laying off half a hundred IWCC workers? Well, they know John Q. Public doesn’t understand what I am telling you above. They also feel many citizens might innocently believe WC insurance carriers are very profitable and are fighting to stop passing through the supposed giant savings that came with the 2011 Amendments to the IL WC Act.

 

The real story is clear—medical costs in IL WC are down a notch. That savings is being “passed along” to my clients. WCRI’s most recent reliable statistical report confirms such costs have dropped about 6%. The problem with that cost-cutting is our sister states have cut even more overall WC costs. If you look at our surrounding states, if we can cut IL WC costs about 10%, we would and should be in the middle of that pack. 

 

As a cautionary concept, we aren’t going to catch the cheap-o Indiana WC system as I assure you their WC benefits are terrible and they should be ashamed of how they treat catastrophically injured workers and/or widows and widowers. If you don’t believe me and want my thoughts on that issue, send a reply.

 

If IL WC is to cut even more costs to get to the mid-stream, we told you in the past weeks there are two simple ways to do so. The first is to immediately roll back the PPD values to the pre-2005-2006 numbers. This would be a 7.5% savings the day it would be enacted. We believe the Plaintiff bar in this State would accept that roll-back. The second and even easier way to cut IL WC costs is for Governor Rauner to tell the IWCC administrators who work for him to cut WC benefits by 10% or whatever value he feels best. If they won’t cut benefits, start to cut the administrators who aren’t listening. In response, we believe the Plaintiff bar will deal with mildly lower IL WC costs and some of them may not be able to afford a second Maserati or Ferrari but they will get along just fine.

 

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

Synopsis: IL Supreme Court Confirms Petitioner Attorney Has To Abide By Fee-Sharing Agreement.

Editor’s comment: It is hard to believe it was worth all this litigation! We assume they wanted to make a point and I agree with the outcome. It is just a shame there isn’t some easier and faster way to reach it—please note the first of these claims appears to have arisen in 2007.

The Illinois Supreme Court last week ruled a claimants’ attorney had to follow the written attorney fee-sharing arrangement he had with a different firm. He was not allowed to stiff the law firm that referred numerous IL WC cases to him because of an alleged technical violation of the Supreme Court’s Rules of Professional Conduct. Under the rules, two lawyers or law firms who split a fee generated by the representation of a client will both face joint liability if the client later complains of malpractice. Accordingly, the rules require Illinois lawyers and law firms expressly agree to share in this potential for joint liability to the client at the time they agree to share in the fees.

Although the clients also need to consent to the fee-splitting arrangement, our highest Court said clients do not need to be specifically informed of the fact both firms can be held financially responsible for mishandling their claims. The Court concluded the fee-splitting agreements between attorney Anthony Esposito and the law firm of Ferris, Thompson & Zweig were not rendered unenforceable just because their clients weren’t told about their joint financial and/or malpractice responsibility for their cases.

This decision marked the second time the Supreme Court had to weigh in on the long-running dispute between Esposito and the Ferris firm over the division of $109,390.89 in fees. Two years ago, the Court confirmed the IL Workers’ Compensation Commission didn’t have jurisdiction to decide the validity of the agreements, which entitle Ferris firm to payment of $49,225.90. The Ferris firm was hired by ten injured workers between 2007-2010 to pursue work comp claims for benefits. The Ferris firm contracted with Esposito to represent the workers in filling the Applications and later for proceedings before the IWCC.

Under the terms of the written arrangement, Esposito agreed to pay the Ferris firm a 45% share of attorney fees awarded in these IL WC cases. Consistent with IL Supreme Court Rules, the injured workers were all informed of the arrangements. They provided written consent to the division of fees.

Thereafter, Attorney Esposito negotiated settlements in the cases and secured attorney fee awards ranging from $700 to $46,000 each. The total attorney fees for all 10 cases amounted to $109,390.89 The Ferris firm then demanded payment of its 45% share, but Esposito refused to honor the agreement. The Ferris firm responded by filing a breach-of-contract claim against Attorney Esposito in Lake County Circuit Court.

Esposito moved for summary judgment, arguing the fee-sharing agreement was invalid because it did not comply with Rule 1.5 of the Illinois Rules of Professional Conduct. That Supreme Court Rule governs the fees attorneys may charge their clients. Subsection (e) addresses the division of fees between lawyers who are not in the same firm. The rule has three subparts, which say a fee split is appropriate “if the primary service performed by one lawyer is the referral of the client to another lawyer and each lawyer assumes joint financial responsibility for the representation;” the client “agrees to the arrangement, including the share each lawyer will receive;” and the total fee is “reasonable.”

Esposito argued the Supreme Court Rule requires the client consent not only to the division of fees, but also to the joint financial responsibility of the attorneys. Lake County Circuit Court Judge Thomas M. Schippers agreed. Judge Schippers cited a 2014 Appellate Court case Donald W. Fohrman & Associates v. Mark D. Alberts for the principle that referral agreements involving the division of fees between lawyers who are not in the same law firm are not enforceable unless they strictly comply with the provisions of Rule 1.5(e). In the Fohrman case, the First District Appellate Court’s found a fee-splitting agreement wasn’t enforceable because it failed to provide the client with notice the lawyers had assumed joint financial responsibility for the matters, among other deficiencies.

The Ferris firm appealed Judge Schippers’ ruling, and the Second District Appellate Court reversed Judge Schippers last summer. The Second District rejected the idea strict compliance with Rule 1.5(e) required referral agreements involving fee sharing to expressly provide notice the lawyers and firms assume joint financial responsibility. Since the Ferris firm and Esposito undisputedly accepted joint financial responsibility for the representation of the workers in the 10 referred cases, the Second District said Supreme Court Rule 1.5(e) was satisfied.

In their recent ruling, the Illinois Supreme Court agreed. The Court noted “the current joint financial responsibility requirement is included in a different subsection of the rule than the provision addressing what the client must agree to.” Rule 1.5(e)(2) just says the client must agree to the “arrangement” between the lawyers/law firms, the court said, reasoning the “arrangement” is “the referral of the case and the division of fees between the referring and receiving lawyers.” The Court determined the joint financial responsibility requirement in Rule 1.5(e)(1) is not part of the “arrangement” referenced in subsection (2), deciding that “each of Rule 1.5’s three subsections constitutes a separate condition that must be satisfied in order for a fee-sharing agreement to be enforceable. Rule 1.5 reads like “a checklist in which each of the enumerated items must be crossed off before moving to the next, and all must be checked off before the fees may be divided,” the Court said.

The Court added the Fohrman case does not establish a contrary rule, since the Fohrman decision didn’t say that Rule 1.5(e) requires the agreement from the client to include a provision regarding the attorneys’ acceptance of joint financial responsibility. The agreements involved in the Fohrman case “suffered from numerous deficiencies, and the attorney seeking to enforce them did not dispute that they failed to conform to Rule 1.5(e),” so the decision just assumed there was a requirement that a client receive notice of joint financial responsibility without finding the requirement existed.

The Court further noted that “if the clients in this case had retained a single law firm with multiple partners, our Rules of Professional Conduct would not have required the retainer agreements to expressly notify the clients, in writing, as a precondition to enforcement of the fee agreement, that the partners would be subject to liability along with the attorney providing the actual legal services if that attorney committed malpractice.” 

The Court said it didn’t see any reason why the situation should be any different where “the lawyers involved have agreed to assume the very same joint financial responsibility but simply do not practice in the same firm” since “the clients are protected either way.”

In my view, the lengthy course of litigation it took to get this decision from our highest Court, this case likely cost the parties far more than the amount of fees at issue. It is a shame our Courts can’t work stuff like this out cheaper and faster—the issues are not that complex.

To read the court’s decision, click here. 

Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

  • Analyze options which can be utilized on a claim by claim basis to set targets for return to work
  • Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work
  • Set targets for accommodated and full duty return to work for injured workers
  • Determine more specific strategies for your industry to minimize lost time claims
  • Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:

http://clearlawinstitute.com/shop/webinars/workers-compensation-return-to-work-issues-strategies/

Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!

 

Workers’ Compensation in Illinois is complicated . . . Do you know everything you need to know about the Illinois WC system? Attorney Jim Egan of Keefe, Campbell, Biery & Associates will begin with a review of the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end. He will then analyze and discuss in-depth important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims.

 

The final section of the day will include a number of essential factors to be considered when you are dealing with any workers’ compensation claim. You will receive helpful information on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

 

This is a not to be missed workshop for anybody who handles Workers’ Compensation claims in Illinois.

 

Registration Information:

Tuesday, June 20, 2017

10:00 am - 4:00 pm

Holiday Inn Express, 1000 Plummer Drive, Edwardsville, IL 62025

Early Bird - (For everybody) - Sign up before June 10 - $249.00

Member (For members of the Illinois Chamber & local chamber partners) - $299.00

Retail Price - $349.00

5-22-2017; Illinois Continues Financially Unsound Ways--WC Proposals/Changes; Thoughts on Jesse Jackson, Jr’s WC Claim; Arbs Moving and more

Synopsis: As Illinois Continues Efforts To Become as Financially Unsound as Puerto Rico, Greece and the City of Detroit, Work Comp Reform Is Still In the News.

 

Editor’s comment: More miserable news from the Land of Lincoln, this week:

 

·         Unpaid vendor’s bills in this nutty State now exceed $14.5 billion dollars and continue to rise by millions every day.

·         Butterball Meats and Caterpillar are shuttering two plants in the Aurora, IL area and about 1,400 jobs will be leaving shortly.

·         Illinois judges/justices are in what is being called “career paradise” with effectively part-time jobs that provide unlimited paid time off, unfundable benefits/pensions, salaries that start at $200K+. They are constitutionally guaranteed to get giant, automatic raises to salaries/pensions every year that will eventually quadruple (and more) their compensation.

·         State personal income tax is almost certainly going to be set at about 5% ormore in the near future—many states don’t have a state income tax at all.

·         Our General Assembly appears to be ready to add lots of new and unprecedented service taxes to all sorts of things, like storage space, including garages and boat docks; maintenance of property like cars; landscaping including sprinkler installation and snow removal; dry-cleaning; cable TV, satellite and digital streaming services; pest control; use of a private detective or installation of security systems; and personal care, ranging from tanning to tattooing but—whew--not including hairstyling.

 

You can’t make this stuff up, folks. No one seems to strongly care about how all those things are driving our taxpayers crazy. With all this State debt, departing jobs/businesses and overpaid government workers, the not-that-important government thing appears to be something as trivial as IL workers’ comp reform. We vote do something to get work comp out of the legislative gun sights and let our leaders get back to the big ticket issues.

 

From Keefe, Campbell, Biery & Associates--Two Simple IL WC Reform Proposals To Get Our Claims Industry in Line and Out of the Legislative Cross-Hairs.

 

We find it a bitpuzzling workers’ compensation reform continues to be such a focus of concern to the extent it is seen as a sticking point for our State’s budget. With the nation’s highest budgetary deficits and massive under-funding of state government pensions, it is our impression that tackling workers’ compensation reform in Illinois at this juncture is a bit like focusing on untangling a tiny knot in the dragon’s tail as he is about to breath fire over the entire state.

 

However, as recent reports appear to show only modest savings from the 2011 statutory changes to the IL Workers’ Compensation Act, we offer two very simple, yet effective changes which would almost immediately bring Illinois workers’ comp costs back into the average of most of our sister states.

 

First, we recommend a return to the pre-2005 schedule for PPD values. Veteran observers of our industry will recall 11 years ago when our General Assembly found it prudent to actually increase the PPDvalues for injuries by 7% across the board. This was viewed as nothing more than an effort to further line pockets of claimants and their attorneys in a State that already had generous PPD or “settlement” values.

 

For a simple and unquestioned IL WC reform--returning to the former PPD schedule will save 7% on awards and settlements immediately. We don’t feel anyone on either side of IL WC would beef about that change.

 

Second, rather than developing an needlessly complex system of geo-zip fee arrangements or worse, Medicare-linked reimbursements for medical care that will drive great doctors out of workers’ comp, why not simply average the two or three largest group provider fee schedules and set that as the standard workers’ comp medical fee payment schedule? Doing so will allow doctors to be paid the same, whether treatment is under workers’ comp or group health. Moreover, this method would eliminate the financial incentive for doctors to drive claims into workers’ compensation to collect higher rates, as we have certainly seen some medical providers do over the years.

 

Adjustments can be made every 3 years to keep the average current with any group adjustments. Doctors make money from Humana and Blue Cross and they would make the same treating workers’ comp claims too.

 

Making these two simple changes, which we expect should be fairly easy to pass with both the Governor’s and General Assembly’s approval, will save enough to make Illinois competitive again and also keep benefits adequate for our Illinois workers.

 

Where IL WC Reform Is Right Now in Springfield

 

Last week, the IL Senate's workers' compensation proposal received a new amendment. SB 198 (formerly SB 12) is essentially amendment 4 to SB 12 as reported on last week with two specific changes.

 

SB 198 adopts the Illinois State Chamber’s recommended move from the current IL WC medical fee charge system to an RBRVS or resource-based relative value scale effective September 1, 2017. This is expected to cut IL WC medical costs in the area of 30% more than steep cuts made in 2005-6 and 2011.

 

In addition, the new amendment requires the Workers' Compensation Commission to investigate all procedures, treatments, and services covered under law for ambulatory surgical treatment centers and accredited ambulatory surgical treatment facilities and establish fee schedule amounts for procedures, treatments, and services for which fee schedule amounts have not yet been established. These loopholes will close.

 

Governor Rauner’s mixed-up efforts to reform or cut costs in IL WC by

 

      Changing our “causation standard,”

      Redefining and possibly expanding the nutty “traveling employee” concept and

      Strengthening AMA guidelines in setting PPD or “permanency/impairment.”

 

are not part of this compromise. As we have reported repeatedly, Governor Rauner doesn’t need legislation to make the changes above. He can make such changes with his administrative/executive control of the IWCC and either doesn’t know or doesn’t care to do it.

 

If there are changes made as part of a “Grand Bargain,” it would appear medical cost cutting is likely the extent of what will be considered the 2017 Amendments to the IL Workers' Comp Act.

 

Then we hope IL workers’ comp reform would be off the table and our industry can go back to the normal challenges. We would love to see the Governor and General Assembly tackle the monster, multi-billion dollar battles to cut government budgets and bring runaway spending into control before raising taxes so high even more folks will be driven away from this State.

 

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

 

 

Synopsis: Thoughts on Jesse Jackson, Junior’s Workers’ Comp Claim.

 

Editor’s comment: Please note Jesse, Jr. is actually getting federal and not state WC benefits. He has been receiving them in and out of prison for years, it seems. This information is coming from his divorce proceedings. You may note his soon-to-be-ex-wife was a longtime Chicago alderwoman who didn’t actually reside in or anywhere near Chicago and almost never, ever attended a City Council hearing. In the one-party political system that we have in Chicago due to a lack of term limits, no one stood up to point out her constant disappearing act.

 

Due to the disclosures about Junior’s pending federal WC claim, there is a legislative proposal for a bill to end Junior’s benefits, in a fashion that probably will affect just him. He could lose about $100,000 a year in tax-free workers' compensation benefits if a bill introduced Wednesday by an Illinois Republican becomes law.

U.S. Rep. Rodney Davis of Downstate Taylorville introduced the measure. It is a looooong way from becoming law—Junior may continue to be paid until something changes.

 

Jackson was convicted in 2013 for using about $750,000 from his campaign donations for personal use, like buying a $60,000 Rolex® watch. He allegedly receives the WC benefits because he has bipolar disorder and depression, which were diagnosed in 2012, according to court documents. I would be depressed too if I had to go to federal prison! Hard to imagine how that condition might be work-related.

 

Rep. Davis' measure would reform workers' compensation eligibility for members of Congress who convert campaign funds for personal use or are convicted of any of 28 other crimes related to their public duties.

 

The bill also would require the House's chief administrative officer to submit an annual report listing past employees who receive workers' comp. Davis sits on the House Administration Committee, which would receive the report.

 

Doesn't it seem mildly insane that we have to pass a federal law to have someone cut off benefits that should never have been paid to start with? Shouldn't the federal administrator who approved the non-injury WC claim be fired? Shouldn't someone investigate how many federal WC claims are being paid without any actual injuries?

 

Why does work comp always seem to be such a smoking mess? We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: IL Arbs Moving Around.

 

Editor’s comment: As of July 1, 2017, Arbitrator Hegarty and Arbitrator Friedman will be switching dockets to ensure compliance with the Illinois Workers’ Compensation Commission Act. 

 

Arbitrator Hegarty who is considered moderate/liberal due to her legal background and training will be moving to Zone 5 or Rockford/Waukegan/Woodstock. All cases formerly assigned to Arbitrator Friedman and new filings will now be assigned to Arbitrator Hegarty. 

 

Arbitrator Friedman who is considered moderate/conservative from his legal background will moving to Zone 6 or Wheaton/Geneva/Elgin and all cases formerly assigned to Arbitrator Hegarty and new filings will now be assigned to Arbitrator Friedman.

 

If a case had been tried or partially tried by either Arbitrator, that hearing officer will retain jurisdiction over the case. 

 

Please reply with any concerns.

Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

·         Analyze options which can be utilized on a claim by claim basis to set targets for return to work

·         Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work

·         Set targets for accommodated and full duty return to work for injured workers

·         Determine more specific strategies for your industry to minimize lost time claims

·         Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:

http://clearlawinstitute.com/shop/webinars/workers-compensation-return-to-work-issues-strategies/

Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!

 

Workers’ Compensation in Illinois is complicated . . . Do you know everything you need to know about the Illinois WC system? Attorney Jim Egan of Keefe, Campbell, Biery & Associates will begin with a review of the basics of Workers’ Compensation in Illinois, including benefits, the Workers’ Compensation Commission, and handling a claim of injury from the beginning to end. He will then analyze and discuss in-depth important topics such as Temporary Total/Partial Disability, Nature and Extent of Injury, Wage Loss Differential, Discovery, Liens and related claims against WC benefits in Illinois, Surveillance, Retaliatory Discharge and How to Handle WC Death Claims.

 

The final section of the day will include a number of essential factors to be considered when you are dealing with any workers’ compensation claim. You will receive helpful information on pushing your claim targets, using real time examples. Keeping in touch with your workers and how to drive claim closure are key, so these will also be discussed.

 

This is a not to be missed workshop for anybody who handles Workers’ Compensation claims in Illinois.

 

Registration Information:

Tuesday, June 20, 2017

10:00 am - 4:00 pm

Holiday Inn Express, 1000 Plummer Drive, Edwardsville, IL 62025

Early Bird - (For everybody) - Sign up before June 10 - $249.00

Member (For members of the Illinois Chamber & local chamber partners) - $299.00

Retail Price - $349.00

5-15-2017; RBVRS to Hit IL WC--Snoozefest, Savings or Both?; Consider Reassignment to Fulfill ADA Requirements; When to Do Ex Parte Depositions in IL WC and more

Synopsis: IL Labor/Democrats Offer RBVRS (?!) as New and Blurring Part of IL WC Reforms.

Editor’s comment: A Chicago Democrat presented new IL WC reform legislation incorporating a “resource-based relative value scale” or RBRVS as the physician-healthcare payment system as a cost-savings mega-plum for IL employers and local governments. This concept is now included in the pending workers' compensation bill as part of a compromise with IL Republicans to solve our nutty State's budget deadlock. Please note our State hasn’t had a real “budget” under the current Governor Bruce Rauner. 

Sen. Kwame Raoul filed Amendment No. 4 to the “Grand Bargain” or Senate Bill 12 last Wednesday; it remains in the IL Senate Assignments Committee. The proposed change calls for a RBRVS or Medicare-based fee schedule to lower some of the highest workers’ comp medical costs in the U.S. In short, it appears the doctors, hospitals and other health care givers are again being pushed to take moderate to dramatic cuts to demonstrate WC cost savings. This will be the third major cut in medical costs in the IL WC industry since the 2005-2006 Amendments to the IL WC Act were created.

From what we can tell, the IL State Chamber and other business and insurance interests cautiously support this unexpected WC amendment.

What In Tarnation is RBVRS?

As my wife said yesterday—sounds like a complete SNOOZE-FEST! But it seems to be important for many IL WC industry folks to study, learn and start to understand. We assure you we feel it could only be loved by nerds and dweebs but sometimes those folks save you more money.

The AMA has an RBVRS overview online here:

https://www.ama-assn.org/rbrvs-overview

In their clear-as-mud explanation, they say:

The resource-based relative value scale (RBRVS) is the physician payment system used by the Centers for Medicare & Medicaid Services (CMS) and most other payers. The RBRVS is based on the principle that payments for physician services should vary with the resource costs for providing those services and is intended to improve and stabilize the payment system while providing physicians an avenue to continuously improve it.

Sounds simple, sort of like quantum physics--right? Huh?

The RBVRS concept appears to have been implanted into California’s work comp system by their nerds some years ago.

http://r.search.yahoo.com/_ylt=A0LEVvYktBlZWCcATwonnIlQ;_ylu=X3oDMTEybHVoZHJhBGNvbG8DYmYxBHBvcwMzBHZ0aWQDQjM4ODhfMQRzZWMDc3I-/RV=2/RE=1494885540/RO=10/RU=http%3a%2f%2fwww.dir.ca.gov%2fdwc%2fRBRVSReport%2fRBRVS_May2008.pdf/RK=0/RS=mV2cfHQLZDxOGDd06kjpoHXB9SQ-

Back to How RBVRS May Come to an IL WC Claim Near You

Stakeholders in the IL WC system feel the expected savings from RBVRS would depend on the percentages of Medicare reimbursement that would be allowed for doc’s and hospitals by the IL Workers’ Compensation Commission, should Amendment No. 4 and “the Grand Bargain” in SB 12 pass and then be signed by Gov. Rauner. The new bill directs the IWCC to set the rates, but establishes parameters tied to where current medical reimbursement rates stand.

Jay Dee Shattuck, executive director of the Illinois Chamber of Commerce’s Employment Law Council was quoted as saying “We believe the change will bring Illinois’ workers’ compensation medical fee reimbursements more in line with medical fee schedules of other states around the country.” He also said “It more fairly reimburses management and evaluation service codes, which are some of the lowest in the country, and reduces the codes — such as surgery — that are some of the highest in the country.” As we have advised our readers in the past, Jay Shattuck and Todd Maisch, the President of the IL State Chamber are among the top business leaders in the WC field in this state. If they did their homework and still like RBVRS, it is probably a solid idea, not matter how difficult and boring RBVRS may be to understand. If you are interested in learning more about IL WC reform and/or cutting workers’ comp costs, consider joining the IL State Chamber and the ELC—check out their website at www.ilchamber.org.

Illinois currently has a home-grown, charged-based medical fee schedule based on geographic areas called "geozips." Illinois medical reimbursement rates are considerably higher than our State's neighbors, even with a 30% across-the-board reductions created from the 2011 Amendments to the IL WC Act, per the Illinois Policy Institute.

WCRI or the Workers’ Comp Research Institute’s recent stat-rat study confirmed the average total cost per workers’ compensation claim in Illinois has decreased 6.4% since 2010 primarily due to significant cuts in medical costs. However, our overall WC costs continue to outpace most of the 17 other states studied in WCRI’s recent report. Before that overall WC claim decrease, Illinois had the second-highest WC Medical Fee Schedule — behind only Alaska — in a comparison with 43 other states and the District of Columbia, WCRI said in a 2016 study. After the IL WC Medical Fee Schedule reduction, Illinois had the 10th highest fee schedule rates among those 43 states when measured as a percentage of Medicare's maximums, WCRI said.

So How Would RBVRS Happen? How Would It Affect Your Claims?

Senator Raoul’s proposed IL WC Medical Fee Schedule would continue to use four regions for non-hospital fee schedule amounts and 14 regions for hospital schedules. It would task the IWCC, within 45 days of the bill’s enactment or sometime later this summer, to determine the Medicare percentage amount for each current procedural terminology and diagnosis-related group code using the most recent data available from the Centers for Medicare and Medicaid Services.

Within 30 days after the IWCC determines the percentage rates, it would be required to make several adjustments:

  • If the percentage for a particular CPT or DRG code is 125% of the Medicare rate or less, it would be set at 125%.
  • If the percentage is more than 125% but less than 150%, the rate would not be adjusted.
  • If the rate is greater than 150% of Medicare but less than 225%, the rate would be set at the higher amount of 150% or 85% of the most recent maximum amount allowed for that CPT or DRG code in the current fee schedule.
  • If the Medicare percentage is greater than 225% but less than 428.57%, the amount would be set at 191.25% of Medicare or 70% of  the current maximum rate.
  • If the percentage is greater than 428.57%, it would be set at 300%.

By Sept. 1 of each year, the IWCC would be required to raise the maximum fee for each CPT and DRG code by exactly half of the most recent annual increase in the urban consumer price index.

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Synopsis: Consider Reassignment to Fulfill ADA Responsibilities to Injured/Disabled Workers.

Editor’s comment: U.S. Employers may not realize you can safely reassign an injured or disabled worker to a vacant position within your organization to reasonably accommodate his or her disability. Instead, some HR and risk managers may mistakenly think a leave of absence is the last reasonable accommodation you should provide.

An employer that offers reassignment as a reasonable accommodation should document, document and document more, says Brad Smith of KCB&A. Send a letter to the injured/disabled employee you are accommodating to confirm for him or her you are seeking to reassign the worker to your open spot. The letter is a necessary step to keep the employer from having to offer reassignment indefinitely. The letter also should explain the worker can't currently be reasonably accommodated in their current job.

Once the letter is delivered, the employer has time to identify an appropriate reassignment.

Whenever and wherever possible, an employer should first attempt to reasonably accommodate the person in his or her current position. Then a leave of absence may be required under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), or both. Once leave starts to disrupt operations to the point reasonable accommodation is no longer “reasonable,” the employer should consider whether the employee can return to his or her current job with or without reasonable accommodation. If not, the employer should consider reassignment as a backup option.

The employer should look at vacant positions at all its facilities, not just the one the employee works at. If you find an open position at another facility, the employee may decline or accept the offer but you may be able to argue you have satisfied ADA to identify and offer the position. An employee with a disability may be required to apply for a transfer before being reassigned as long as all other employees seeking a transfer are required to do so.

Whether the employer has to give a preference to the employee with a disability for the vacant position over other employees is a challenging legal question and ultimately may have to be resolved by the U.S. Supreme Court.

This question may come down to what level of risk you as an employer are willing to accept. Reasonable accommodation is by its very nature something “extra,” for an injured or disabled worker. If an employee with a lasting injury or disability isn't given a preference in assignments/reassignments, then he or she is not receiving anything additional.

Please also note the concept of reassignment is one source of what I feel is appropriate criticism of “benefit-ocracies” in IL State and local governments. For one example, prison guards/correctional officers who are attacked by inmates suffer moderately disabling injuries. Following care to the point of MMI, they may not be able to return to correctional work.

Rather than bring them back to work at other administrative or low-impact light duty positions, they are allowed to remain off all work for months and years to then potentially become “odd-lot” total and permanent disability claimants who may receive several million dollars in benefits. The former gov’t workers become politically beholden to their “sponsors” who give them the biggest “perk” in government—tax-free money from taxpayers. In this government setting, I feel we are going to need to pass laws requiring government officials re-hire or re-assign such workers when light and sedentary work opens up appreciate your thoughts and comments. Please post them on our award-winning blog.

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

Synopsis: Practice Tip for IL WC Attorneys and Claims Handlers—How To Handle an IL WC Deposition When the Other Side Doesn’t Show.

Editor’s comment: Please note depositions in IL workers’ comp are evidence depositions only. Unless the other side agrees, you can’t do a discovery dep in a WC proceeding.

IL WC deps are not technically “set” by notices of deposition—there is no statutory provision for WC dep notices, as there is at common law.

If an IL WC attorney receives a WC dep notice, we still have to agree to attend—if you are going to agree to depose the other side’s expert, confirm you will do so. If you aren’t going to attend upon receipt of a WC dep notice—tell the other side in writing.

The other side either “agrees” to the deposition date/time or the dep is set by an odd process called a dedimus potestatem (I am not going to explain that moderately complex process here—send a reply if you want that info).

Those are the only paths to set/conduct a dep in IL WC.

If we set our expert’s dep and the other side forgets or isn’t there and is unwilling to proceed by phone, we vote DO THE DEP.

About three months ago, we had a deposition scheduled and OC knew of the dep and then forgot about it. Our attorney was there with the doctor and court reporter. Our doctor was already paid in advance and the court reporter will always bill for attendance. As OC didn’t show up, our attorney then mistakenly “cancelled” the dep and left.

In my view, I strongly recommend IL WC attorneys NOT do that—if you are there for your doctor’s dep--take the deposition without opposing counsel present. You and our client paid for the doctor’s time and attendance. You will be billed for the court reporter’s attendance. No client will want to pay again and you will get into a total storm to then have to go before an Arbitrator and fight over who has to pay for the second setting to allow cross-exam, etc.

Do the deposition as an “ex parte” dep—do the normal preliminaries but also put into evidence the correspondence/emails from and to OC confirming they were aware of the dep and were supposed to attend. Then ask all the questions you need from your expert.

If the other side wants to cross-examine your expert (and they should due to malpractice concerns), it is on them to set the second dep by agreement and pay for the doctor to attend and the court reporter.

If you appear at the dep of the other side’s expert and OC doesn’t attend, if the expert will proceed, it is a judgment call to go forward without your opponent.  In that setting, I would typically tell the doctor to contact the attorney and reset at the other side’s expense. I would also confirm all of it in writing to OC and your/our clients

Happy to discuss—send a reply. we appreciate your thoughts and comments. Please post them on our award-winning blog.