6-14-2011; It’s a belt-high fastball, folks—right over the middle of the plate. Are you ready to hit it?

Do you remember the scene in the movie Bull Durham® where Kevin Costner, as the catcher, tries to call a pitch and the pitcher keeps calling him off? Costner then calls time to talk to the pitcher and after returning from the mound he whispers to the batter to get ready for a fastball over the plate. The slugger, having been duly advised, smokes the ball over the fence. All the batter needed was a little bit of a warning on what was coming and when prepared, he clearly took advantage.

With that in mind, the current situation on Illinois workers’ compensation reform has us scratching our heads. While the Governor hasn’t signed it yet, our legislature has provided one of the biggest cost-savings in the century-old workers’ compensation system. Assuming the Governor signs it soon, and every indication is he will—is Illinois business ready to take advantage of your newly found advantage? Are you folks listening to what just happened and ready for it?

The biggest cost saver is the shift in medical coverage in the Illinois WC system. From an historical perspective, the supposed “limits” on choice of doctor by an employee in this state have actually been “unlimited.” By that we mean, for several decades, an Illinois employer was responsible to pay for the first choice of physician by an injured worker. Thereafter, the employer was also responsible to pay for any healthcare provider to which the initial choice of doctor referred the patient in a “chain of referrals”, allowing all healthcare providers to refer injured workers to new doctors, clinics and hospitals.

Does that sound pretty generous? Well, there is more. On top of the initial doctor and the chain of referral from that doctor, an injured worker could change their mind and then start all over again with another doctor and a new chain of referral flowing from that doctor!!! In our view, it was legalized doctor-shopping and lots of abuses flowed from the effectively unlimited Illinois double-chain-of-referral system.

Has this changed? Well, only if you are ready to step up to the plate and take advantage of the new 2011 Amendments to the Illinois Workers’ Compensation Act. If you don’t take affirmative action right now to change what you are offering your workers, you are going to remain in the “two-choice” medical choice program outlined above.

Moving your IL WC program so your employees will have one choice of doctor/chain of referral

Our vote is to cut one of the “chains” for your workers right now. If you want to cut out one choice of doctor, you have to offer a PPO for your workers. If you do this, you immediately supplant one of their choices with a WC medical care system of your own selection. Please don’t be confused, even with a PPO, injured Illinois workers still have one post-emergency choice and the chain of referral stemming from their initial choice.

However, if you provide a PPO for workers’ comp injuries after the Governor signs this new bill, you limit workers to only a single choice—the only other choice is your PPO. In our view, if you work hard right now to put a WC PPO in place, you not only limit your workers’ post-injury medical choices, with a little tweaking, you may also provide a much better WC medical system for your Illinois operations.

In our view, it is easy but you need to get on it right now. This bill could be signed any day and it will go into effect of its own accord if the Governor takes no action by August 1, 2011. Please note there is no way to find out when Governor Quinn will sign the new bill—he is busy with other major government issues at present.

Either way, dig in and expect that very-hittable belt-high fastball. Illinois risk managers should get on the phone to their brokers right now and let them know you need to offer all of your workers what is called a Preferred Provider Network in the new Amendments. If you don’t have a broker who understands what you are asking, have them contact us. We have been advised these programs are also called Preferred Provider Program, Preferred Provider Association and Preferred Provider Option. We are not aware of any difference regardless of the name chosen. All of them involve a ready-made system for healthcare that should be identified, explained and presented to every Illinois employee at the time of their hire.

Then, if an unfortunate event occurs and they become injured at work, you are ready. We recommend you already have your selected emergency care treatment facility identified. For non-emergent OccHealth care, have your OccHealth facility selected and ready to rock. As it is now completely legal to direct workers to such institutions to initiate early care, make the absolute most of it. This is something you need to emphasize at job orientations, at any manager’s meeting and consider putting up signs identifying these facilities as your place of choice. If you have a workers’ comp website for your workers—add the PPO to it. If you want a sample or suggested WC website for your workers and managers, send a reply.

If/when your troops go into the PPO for work-related care, you may expect solid medical care with lots of options; the PPO should work for you. Most PPO’s also provide tremendous cost-savings for employers with reimbursements lower than our newly reduced WC Medical Fee Schedule. A truly solid WC PPO should also have primary care physicians who have a focus on targeting MMI and return to work at light and full duty. There is nothing wrong with telling your OccHealth providers of your light work program and ask them to keep it on file at their facilities.

We consider this an amazing new change to our WC system and we are certain it will provide savings in both medical and indemnity reserves at every level and with all Illinois employers smart enough to move to it. Please don’t be the last one on your block to sign up—all of your competitors are going to be doing so.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog at: http://keefe-law.com/kcablog.html

6-7-2011; Putting a worker on ‘inactive status” doesn’t necessarily block retaliatory discharge claims—in a de novo review the Seventh Circuit overturned the Federal District Court’s...

We have advised some clients one strategy to avoid retaliatory discharge claims is to put the employee on inactive or “leave of absence” status but issue COBRA notices. If you don’t “fire” them, how can they beef their termination?

In this ruling, the Federal District Court supported that approach and found there could not be a claim for retaliatory discharge as the employment relationship had not been terminated. On appeal, our Seventh Circuit Court of Appeals found the employee set forth sufficient evidence to create a genuine dispute about whether the employer terminated the relationship.

Through its exercise of supplementary jurisdiction, the Northern District of Illinois analyzed the following facts and found no termination occurred because the employee had remained an employee on “inactive status.” In the absence of a termination, the District Court granted the employer’s motion for summary judgment on the retaliatory discharge claim. The employee appealed.

In a decision entered May 25, 2001, the United States Court of Appeals for the Seventh Circuit reversed the grant of summary judgment. In Moore v. Vital Products, Inc., Nos. 09-1527 & 09-1537, the employee worked for the employer as a driver technician and was hired in this capacity on August 16, 2004. The employee claimed he was subject to unwanted sexual advances and compliments from two male coworkers. He further claimed he reported these incidences to the company president in August and September 2004 via written correspondence. The president claimed to have never received this correspondence.

The employee was suspended for poor job performance on January 3, 2005. He returned to work and allegedly injured his back on February 16, 2005. After the alleged injury he never returned to the workplace. The employer completed an injury report on February 28, 2005.

On February 21, 2005 the employer claimed it issued a COBRA notice to the employee, which the employee claimed he did not receive until September 2005. This notice contained the words “termination of employment.”

On December 7, 2005 the employee filed charges with the EEOC, in which he represented he was still employed though on injury leave. On June 4, 2006 the employer composed a letter to the employee advising him of an available position within his workplace restrictions which stemmed from the alleged February 16, 2005 injury. This letter was never mailed and the employee denied having seen it prior to his filing suit.

On February 16, 2007 the employee filed suit in federal district court alleging in part retaliatory discharge in violation of the IWCA.

The Seventh Circuit held the sequence of events created genuine issues of material fact and therefore summary judgment had been inappropriate. Specifically, the Court noted the COBRA notice’s inclusion of the words “termination of employment” contradicted the employee’s apparent assertion that the employee was on inactive status. In addition, the date of the COBRA notice constituted evidence the employee did not abandon his job. Taken together the evidence was sufficient to allow a jury to conclude the employee had been terminated. The Court remanded the retaliatory discharge claim for further proceedings. There were no dissenting opinions.

Keefe, Campbell & Associates handles numerous employment law claims in state and federal courts at rates that are ½ to 1/3 what some labor lawyers charge for similar work. This article was researched and written by Matthew A. Wrigley, J.D. Please do not hesitate to contact Matt at mwrigley@keefe-law.com.

6-7-2011; Medicare Set-Aside Specialist Shawn R. Biery reports more items of interest with regard to Medicare and the ongoing changes which appear to be in response to a Federal District Court...

As previously reported, Medicare had suspended issuance of several letters usually provided with regard to injury litigation which might impact or be subject to future medical or repayment issues with regard to Medicare. At last check, issuance of the Demand letters is still temporarily suspended however review of the Rights and Responsibilities letter (“RAR”) is complete. Issuance of the RAR is anticipated to resume on June 10, 2011. A copy of the revised RAR is supposed to be made available by that time and we will report when we have a copy.

As previously reported, the Demand letter for liability insurance (including self-insurance), no-fault insurance and workers’ compensation is still temporarily suspended while that letter is under review. We again confirm the MSPRC is still working cases, and Demand letters will be mailed out once that review is complete. We believe this is a likely impact due to the decision in Haro v. Sebelius (CV 09-134 TUC DCB Fed. D. Az.), which essentially enjoined Medicare from requiring payment of a conditional payment demand pending a Medicare beneficiary’s request for appeal or waiver of a conditional payment as it was found that the current procedure (collecting interest pre-resolution) exceeds CMS’ authority under the MSP statute and also enjoined Medicare from seeking direct recovery for conditional payment funds from Plaintiff attorneys and indicated “There is no statutory authority, expressed or implied, to support a direct action against attorneys, except to the extent that they are end-point recipients of settlement proceeds.”

We will continue to report as updates are provided from CMS. Please feel free to contact Shawn R. Biery, J.D., M.S.S.C. at sbiery@keefe-law.com with any questions regarding Medicare Set-Aside issues. Feel free to post them on our blog at: http://keefe-law.com/kcablog.html