11-12-2018; SB 904 Continues To Loom As a Litigation Disaster--Can The IWCC Provide A Better Path?; Kevin Boyle reports Single Hearing Member (WC Judge) Change in IN, and New 2018 2d Injury Fund

Synopsis: SB 904 Continues to Loom as an IL WC Litigation Disaster—Can the IL WC Commission Provide a Better Path For Docs and Hospitals to Get Paid Timely and in the Right Amount?

Editor’s comment: Under the former Rauner Administration, our IL Legislature passed several anti-business employment law bills for Governor Rauner's desk. Most notable is SB 904 (Hastings/Hoffman). This challenging and unprecedented legislation makes numerous changes to provisions regarding payment of worker's compensation medical bills.

Then-Gov. Rauner agreed with the IL State Chamber’s accurate assessment of SB 904 that Illinois' workers' compensation law needs revision to reduce growing friction and cacophony between IL employers, WC insurers and medical providers. A major class action on this topic is currently pending.

Our concern is SB 904 would further increase litigation and concomitant employer costs in a system where Illinois already has what the Stat-Rats at WCRI opine is the second highest WC medical fee schedule in the entire U.S. Then-Governor Rauner's amendatory veto provided a path to righteousness—give it to the IL WC Commission to provide some reasonable balance between employer, WC insurer and medical provider interests. 

IL Employers and WC insurers have identified numerous problems with SB 904 resulting in the Illinois Chamber's most stringent opposition. For one simple example, SB 904 allows a WC medical provider to pursue collection of their bills before a Circuit Court judge prior to any determination of whether an injury occurs in the workplace by the Arbitrator or Workers Compensation Commission. It is possible the Circuit Court judge assigned would have to hold a mini-WC-arbitration where Claimant, the medical provider, the insurer and/or the employer would have to all appear via counsel and state their claims. Court costs to just to file such claims would be between $200-400 per claim in Cook County. The Sheriff or process servers would also have to be paid. Court appearance fees are at least $200+. There is no limit on what any of the attorneys for the four parties can charge, like there is in a traditional IL workers’ comp proceeding—a Claimant lawyer representing a Petitioner in such a proceeding could charge $300-500 or more per hour.

In my reasoned legal view, if Claimant wasn’t represented and a Circuit Court judge found the claim to be non-compensable and denied the asserted medical bill, “res judicata” or what is also called “issue preclusion” would attach. In short, Claimant’s workers’ comp claim might be barred without the IWCC ever hearing it. Everyone might find the Circuit Court rules aren’t as nice to the parties as the IWCC can be.

If SB 904 is enacted, Illinois would be the only state in the country allowing such a “double-venued” WC hearing procedure. I firmly believe this change alone will add dramatically more WC litigation into an overly litigious system. I am also sure SB 904 would slow down claim adjudication for injured workers and make all of it confusing and uncertain—the IWCC exists to streamline WC issues and disputes. Finally, I assert SB 904 would cause IL workers' compensation costs to spiral.

Please Remember I Want/Demand IL Doctors and Hospitals Who Provide WC Care to be Paid Timely and in the Correct Amounts—I just want that adjudicated where it has been adjudicated since 1909—the IL WC Commission.

Take a look at this link from ISMS or the IL Medical Society: https://www.team-iha.org/files/non-gated/advocacy/workers-compensation-payments.aspx

It does accurately outline their valid concerns and demand for overriding then-Governor Rauner’s amendatory veto. I join with ISMS in wanting answers and solutions to their many appropriate issues. I have already openly written and asked the IWCC managers and consultants and everyone to rapidly come up with a plan to parrot Indiana or Wisconsin or some other WC system that insures doctors and hospitals are timely paid and paid in the right amounts. I remain amazed to hear nothing is being discussed at the many boards that consult with the IL WC Commission members and interested legislators. Please get going, slowpokes!!!

What is happening in this State is shameful when I hear of approved care by an insurer that is then cut and cut and paid in amounts considered comical by our great doctors and similarly situated medical care-givers. I join with the august and knowledgeable members of the IL Appellate Court in castigating those who are responsible for such actions.

I am sure the gurus at the Illinois Chamber have communicated to the proponents of SB 904 their strong willingness and commitment to negotiate changes to IL WC law to address their concerns in a manner that will not adversely impact Illinois employers and WC insurers. To date, their offer has been rejected without any consideration of finding solutions at the IWCC and in the IL WC Act and Rules. The State Chamber’s exhaustive and accurate analysis can be found at this link: State Chamber on IL SB 904.

Please consider joining the IL State Chamber that is out on the point for IL business. For information, go to www.ilchamber.org.

Please contact your legislative rep on this debate over IL SB 904—the veto session starts TOMORROW!!

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Synopsis: “Here Comes The Judge.” Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: Kevin Boyle reports there is a Single Hearing Member (WC Judge) Change in Indiana, and New 2018 Second Injury Fund Status Report and Forms Available.

The Indiana WC system will soon have a new Single Hearing Member (aka “judge”), replacing Krysten LeFavour, who handled the southeastern part of Indiana.

IN WC Judge replacements don’t happen very often here, and we only have six judges anyway, so this change could be very important.

Please note the “judges” handle both hearings and combine to handle appeals—IN doesn’t have lots of hearing officers, unlike many other states.

No replacement has been named yet and the southeast region is being temporarily handled by Single Hearing Members/judges Dan Foote and Diana Parsons. I’ll keep you posted when the new person is named.

We join with others to thank Judge LeFavour for your time at the IWCB.

Also, the IWCB just posted the new IN 2018 Second Injury Fund Status Report and the Second Injury Forms are now available.

The 2018 Assessment, certificates for insurers and self-insureds have been updated. If you’d like copies, let me know.

IN WC remains efficient and effective.

If you want an IN defense lawyer who covers the entire State and knows the system and works hard to close your files, contact Kevin Boyle at kboyle@keefe-law.com

11-6-2018; Election Special; Dreaded Consecutive IL WC Claims--Who Knows Who Owes and more

Synopsis: 2018 Midterm Election Special from KCB&A/Gene Keefe

Editor’s comment: Lots of things are on the line. As I advised in weeks past, JB Pritzker is way ahead in the polls. Barring a major upset, he is going to be our next IL Governor. He has vowed to

• Increase state income taxes “temporarily”—sure… Once, in place, income taxes aren’t going to be cut so long as our troops in Springfield don’t dramatically reform their spending habits;

• Work to pass a graduated income tax for an unknown new levy in about two years. It will require a constitutional amendment (Try to imagine anyone amending the IL Constitution to limit fake gov’t pension!);

• Make marijuana legal at the State level—I am sure this is to try to get the same level of tax income folks in Colorado are seeing from marijuana taxation/fees;

• Raise the IL statewide minimum wage to $15 per hour.

The only one of these many factors important to IL WC professionals is the $15 per hour minimum wage. If that passes, I assure you IL WC wage loss differential benefits are certain to change in many industries, because anyone who can work, even with severe restrictions, will be making at least $15 per hour.

I assure my readers reserves for wage loss differential claims are going to have to change if the new minimum wage becomes law. If you aren’t sure why/how, send a reply.

As a long-time IL WC Commission observer, I hope the secret-powers-that-be who run the Commission keep our State in the middle of the pack of United States for work comp costs. We don’t need to get on everyone’s radar for being too expensive, PLEASE!!

On the federal level, the Bipartisan HSA (or Health Savings Acc’t) Improvement Act (H.R. 5138) was introduced in the U.S. House, but was not included in the spending bill and has yet to be voted on. The proposal makes helpful changes to current HSA rules, including:

• Allows HSA-compatible plans to provide pre-deductible coverage for services and medications for chronic conditions and for services at on-site clinics and retail clinics (e.g., clinics in pharmacies).

• Permits employees to use HSA funds to pay for wellness activities, equipment and gym memberships.

• Conforms HSA rules to other tax code rules to allow parents to use their HSA funds to pay for medical expenses of children who are not dependents through the end of the year in which the child turns 26.

• Permits employees to contribute to HSAs even if the employee’s spouse participates in a general-purpose health flexible spending arrangement (health FSA).

• Makes it easier for employers to add an HSA-compatible plan when the employer sponsors a health reimbursement arrangement (HRA) or health FSA.

These proposals, if they become law, may significantly change the U.S. landscape on non-work-related healthcare coverage.

On another front, the Equal Employment Opportunity Commission (EEOC) recently advised a federal court it is not likely to meet its self-imposed August deadline to issue updated regulations describing how the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) apply to corporate wellness programs. Regulations issued in 2016 were recently vacated by the court effective Jan. 1, 2019.

One problem for the EEOC is all regulations must be voted on by the five-member commission. Two seats on the commission are vacant and one commissioner is up for re-nomination. Nominees for those seats are being held up in the U.S. Senate, pending the outcome of the current mid-term election.

Whatever you do folks, keep the faith. The United States will rise again! I appreciate your thoughts and comments. No, I don’t like Donald Trump. Please post them on our award-winning blog.

Synopsis: Dreaded Consecutive IL WC Claim(s)—Who Knows Who Owes?

Editor’s comment: In Par Electric v. Illinois Workers' Compensation Comm'n, 2018 IL App (3d) 170656WC, issued October 19, 2018, the IL WC Appellate Court considered a claim where Claimant filed workers' compensation claim for a June 2014 injury to his right arm while in the employ of Par Electric Company. He returned to work elsewhere and later filed IL workers compensation claims for April 1, 2015 and April 3, 2015 injuries to his right shoulder while working for the other company. The events leading to new problems were not severe trauma—one event was simply tossing a tool to another worker.

The IWCC in its wisdom, reached the conclusion the two April 2015 accidents did not constitute intervening and superseding accidents sufficient to break the causal connection from the June 2014 accident. In short, Par Electric, the first employer got stuck with all three claims, even though Claimant recovered sufficiently to return to construction electrician work.

In my opinion, the new Appellate ruling follows a solid trend—they let the IWCC, as the primary IL administrative agency entrusted to determine medical causation make they call. In short, the Appellate Court ruled the IWCC decision  was not against manifest weight of evidence. Our Appellate Court, WC Division noted the evidence supported a finding Claimant had not completely and fully recovered from his 1st injury and surgery despite being released to return to work.

My final whiny, court-watchers comment is to note it took almost four years to resolve who was going to have to take care of this worker—one would think we are smart enough to get such decisions done quicker. I do feel the ruling by the Appellate Court, WC Division does send a message—they are going to follow the IWCC’s lead on such issues so, don’t waste time and money appealing.

It was a unanimous ruling you can view on this trusted link: 

Par Electric v. IWCC

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Synopsis: From Brad Smith, our KCB&A GL defense team lead—New Cook County HIPAA order.

Editor’s comment: This was just disseminated and we want clients and colleagues to be aware of it.

Law Division Administrative Order 18-1 HIPAA Order

Cook County HIPAA Order to view the Law Division Administrative Order 18-1 HIPAA order.

Please contact Brad Smith at bsmith@keefe-law.com for concerns.

10-30-2018; Democracy “Fail” in IL in A Week; Will The IL WC System Survive What is Soon a One-Party State?; Two Non-Profit WC Risk Pools Legally Attack Opioid Pipeline to IL Workers by Matt Wrigley

Synopsis: Democracy “Fail” in Illinois in One Week; Will The IL WC System Survive in What is Soon To Be a One-Party State?

Editor’s comment: When I say Democracy in this State is soon to be a “Fail,” I mean we are only going to have one-party politics, like Chicago has had for several generations. The dominance of the Democratic Party along with the bumbling of our Republican party is leading to a massive landslide for the Donkey folks in just one week from today.

I recall the IL WC system used to be wildly political. IL Arbitrators served only while their party was in power in Springfield—the minute that changed after an election, they quickly knew to resign and would typically go to their political patrons for other positions or, worse yet, they might have to take a private sector position where one might actually have to show up and work. At some point, a wise person provided civil service protections for our work comp hearing officers which was designed to make them somewhat insulated from the politics of the day. In one of the oddest things I can remember, a political reformer, Democrat Governor Pat Quinn stripped away that protection and made the Arbitrators strongly political again because they now serve at the behest of the Governor and political party in power.

Why Is This Potentially The Worst State-Wide Election of Our Lives?

Illinois citizens just went through four confusing years with current Governor Bruce Rauner. Rauner is, in my view, a well-intentioned reformer who does not like the unusual situation in Illinois where taxpayers live our lives subject to the unending financial demands of the government workers who are supposed to be working for us. I suggest you read that prior sentence one more time and try to make sense of it. In short, I feel Illinois taxpayers have completely lost any control of our way-too-numerous state/local governments. In short, I feel we work for them, they don’t work for us any more. I don’t know if or how to get our government workers to return to be our employees but I am sure we stand out from most of the other United States, as being so powerless to do anything to reform this situation.

I just read an analysis from a trusted source who confirmed whopping 94,000 government workers in Illinois earn or receive as fake gov’t pensions, over $100,000 each year. Many of those workers are paid more than our Governor! This same report confirmed there is a husband and wife running an IL community college who bring home $690,000 every year! It is my strong belief such workers don’t “vote” in elections to see who will be the best dogcatcher or mosquito abater. These gov’t millionaires vote and organize other voters with one thought in mind—maintain and increase their salaries and fake gov’t pensions. In my mind, that is democracy and “elections” at their worst.

How Did IL Taxpayers Lose Control of Illinois Governments?

Well, please note the State of Illinois has no term limits for executive and legislative jobs. The lack of term limits slowly but surely made the Speaker of the Illinois House Michael Madigan virtually omnipotent. He reports to no one, never tells you or me of his political agenda and no one can openly tell him anything. Speaker Madigan, by my count, has made several billions as a long-time participant in our phony Cook County real estate tax “appeals” where real estate owners are hoodwinked into dealing with a laughingly flawed assessment process that should be immediately replaced if anyone would use the computing power in a normal cell phone to get accurate real estate taxes set. Send a reply if you want me to explain that one. Don’t hold your breath waiting for our elected leaders to reform RE tax appeals because they would lose billions, literally billions to do so.

Speaker Madigan has been in his legislative position for almost half a century. He was first elected to the House way back in 1971. He has carefully and scrupulously worked with his staff and supporters to unquestionably gerrymander voting districts to turn this State into a one-party system, similar to the political morass we have in one-party Chicago that is teetering on the edge of a coming and certain financial catastrophe. I might not have a problem with a one-party political system if the system was effective and efficient. IL State governments are not even sort of effective or efficient and if no one sets some limits we may some day be a trillion dollars in debt. Not kidding, it is simple math.

Under Madigan’s aegis, our IL State Government workers are overstaffed, over-compensated and worst of all—“over-retired.” If you want examples of overstaffed and overpaid, send a reply, as I don’t want to fill this page with all the inefficiencies and silliness I still see in IL gov’t that Gov. Rauner barely touched. In my opinion, no one is watching the till, gov’t waste is abundant and while we haven’t been watching, the mice have been playing. As to “over-retired,” I have published a link demonstrating the comically expensive fake IL State pensions that allow our legislators and judges and most gov’t workers to barely contribute 1-5% of the overall cost of their lifetime multi-million-dollar fake gov’t pensions. These former workers are receiving billions each year in current tax dollars—the concept of IL gov’t retirement being a “pension” is laughable and ludicrous. Right now, one in four of our current State tax dollars are being spent on retired gov’t workers that don’t work for us any more. We basically owe them from “cradle to grave”—we pay their salaries when they are hired and continue to pay them fake gov’t pensions from our tax dollars after they quit. Our children and their grandchildren and great-grandchildren will keep paying taxes to cover current IL gov’t workers.

Does Anyone Care About a One-Party “Democracy?” Doesn’t Democracy Contemplate Opposing Forces and Views?

Right now, the Chubby JB Pritzker landslide is coming. In a week, all current and former gov’t workers across our State will vote as a unit to protect their jobs, fake gov’t pensions and effectively “free” lifetime group healthcare. All the polls are pointing to a gigantic double-digit win for Pritzker and the government workers and others who support him. We can expect Chubby JB is going to rapidly make marijuana legal from an IL state perspective and raise the minimum wage as high as he possibly can—he has promised he will work to make it $15 per hour. Chubby JB has also promised he is going to rapidly raise the IL income tax on a “temporary” or two-year basis while he works to get a constitutional amendment to install an unfair and business-killing graduated income tax. Illinoisans can be sure to have the highest income, sales and real estate tax load in the U.S. and no one seems to care. The oddest thing in any election I have ever seen in my life is Chubby JB isn’t telling you, Crain’s Chicago Business or any IL taxpayer how much the “temporary” income tax increase is going to be or how much the graduated income tax is going to pinch. I can’t believe our media isn’t demanding answers! All we can be sure of is these tax increases are going to be put into place literally as fast as they possibly can in the hope that taxpayers/voters will have lots of time to forget about it.

What Does All This Mean to IL Work Comp?

As I told you last week the current IWCC administration has taken great strides to return this State to the middle of the pack of all the United States and DC—we are now 22d. I consider this a monumental WC improvement for our businesses and local governments. The problem I foresee is what I started with above. We will soon have a single-party State government with no checks or balances. If Chubby JB and his team want to oust every sitting WC Commissioner and Arbitrator, they can do so without anything to stop them. The politically empowered Claimant attorneys across this State always want “bang for their buck”—they are going to again openly or quietly caution hearing officers not to write rulings unfavorable to them. They will also seek to replace those who aren’t listening closely.

We may again see cockamamie IL WC theories where everything and anything can be an “accident” and no one has to stop treating endlessly and return to work. Doctors and other healthcare givers are poised to sue Illinois employers and insurance carriers in Circuit Court to create an impossible “double-venue” legal morass over pricing and payment of WC medical bills. In short, we may rapidly return to the awful days at the IWCC under Blago-In-Prison where IL WC Commission ruling after ruling came down for Petitioners and our State quickly rose to be the 3d most expensive for WC premiums in the U.S. We can be sure ITLA will then blame the high premiums on evil insurance conglomerates—what a hoot!!

In my view, if we hit Illinois’ business and you and me with

• The U.S. highest income, sales and real estate tax load and

• Doctors and hospitals start suing them in Circuit Court over pricing and payment of WC medical bills and

• Then heap wildly high work comp costs on businesses and local governments

We need to ask the last business to leave Illinois to turn out the lights when they go. I hope the Dems understand how important this is as they ride the landslide into gov’t office.

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

Synopsis: Two Non-Profit WC Risk Pools Legally Attack Opioid Pipeline to IL Workers. Analysis and research by Matt Wrigley, J.D.

Editor’s Comment: On October 15, 2018, two Illinois-based nonprofit risk pools which provide more than 203 public entities with workers' compensation and employee healthcare insurance filed a 217-page Complaint and Demand for Jury Trial in the Chancery Division of the Circuit Court of Cook County against 31 opioid manufacturers, distributors, professional associations, and prescribers. It is the first opioid lawsuit brought by insurance risk pools in Illinois. Intergovernmental Risk Management Agency and Intergovernmental Personnel Benefit Cooperative v. Purdue Pharma L.P., Purdue Pharma, Purdue Frederick Company, et. al., 2018 CH 12828.

Intergovernmental Risk Management Agency (IRMA) and Intergovernmental Personnel Benefit Cooperative (IPBC) seek injunctive relief and financial compensation from these defendants to recoup costs resulting from alleged over-prescription and abuse of opioid medication. IPBC's costs include vast expenditures on hospitalizations due to overdose, addiction treatment services, and overdose reversal medications, while IRMA has paid millions of dollars in cases involving injured workers who were unnecessarily given long-term opioid prescriptions to treat chronic pain.

IRMA was founded in 1979 as the first municipal risk pool in Illinois. IRMA provides comprehensive risk management services, including workers’ compensation coverage, for 72 municipal groups in northeastern Illinois. IPBC is a public risk entity pool established in 1979 by Chicago area municipalities. IPBC administers some or all of the personnel benefit programs offered by participating members to employees and retirees, which include medical & dental payments and life insurance.

The lawsuit asserts opioid manufacturers, including Purdue Pharma, Allergan, and Teva, engaged in aggressive and deceptive marketing campaigns. The lawsuit also alleges distributors including AmerisourceBergen, Cardinal Health, and McKesson failed to act as gatekeepers against overprescribing the addictive narcotics.

Plaintiffs’ also claim professional organizations including Chicago-based American Academy of Pain Medicine and American Pain Society deceptively promoted the use of opioids for chronic pain management. Finally, the Complaint alleges Paul Madison, M.D., and Joseph Giacchino, M.D., operated “pill mills” which provided opioids to anyone who came through the door of their clinic.

The lawsuit alleges in 2015 eight million opioid prescriptions were filled in Illinois, which was the equivalent of 60 prescriptions per 100 people. Officials from IPBC claim its costs include expenditures on hospitalizations from overdoses, addiction treatment, an overdose reversal medications. Representatives from IRMA claim millions of dollars in expenditures due to cases involving injured workers who were unnecessarily provided long-term opioid prescriptions for chronic pain.

This article was researched and written by Matt Wrigley, J.D. who is licensed to practice law in both IL and MI. He can be reached 24/7 at mwrigley@keefe-law.com.

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