6-21-2011; 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 of...

As previously reported weeks ago, ongoing changes are being considered with regard to Medicare and issues regarding their status as Secondary Payer on litigation claims. The House Energy and Oversight Committee reportedly is planning a hearing on MSP issues June 22, 2011 and several sources have confirmed they will hear testimony from employer and insurer representatives.

We will continue to report as updates are provided from CMS or through a number of additional sources and resources. 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

6-21-2011; A great question from a reader—do the 2011 Amendments to the Illinois Workers’ Compensation Act require physicians handling Illinois WC patients to be certified to report/refer to...

As you read this, please note the bill hasn’t been signed and isn’t yet law—everyone assumes that will happen, including me but these recommendations remain “open” until the bill becomes law by signature of the Governor.

To answer this complex inquiry below:

·         No to physician certification on the current AMA Guidelines—from our view, it isn’t required in the Amendments. All a licensed IL physician has to do is provide an impairment rating; they don’t have to be “certified” in any particular fashion to do so.

·         Similarly, no to reporting/reference—it isn’t required in the Amendments. It is basically up to the physician as to whether to “add it to their quiver” or learn how to provide AMA ratings from the current Guidelines. It will be up to the individual doctor to decide whether the demands of their medical practice will be best served to add this capability. We are pretty sure lots of doctors won’t have any need for it—for example, OB/GYN’s aren’t going to consider it. In contrast, orthopedic surgeons with lots of WC patients truly should consider it.

However, it is our impression/advice to all doctors with a few to a lot of IL WC patients to

·         Become familiar with and

·         Start to learn/implement and provide impairment ratings based on current AMA Guidelines and

·         Include an impairment rating as part of any report which documents a particular claimant who they are treating is at or about to reach MMI.

It will make the physician’s role in handling IL patients with WC claims much more “functional” or useful to the IL defense/claims industry. As a claimant reaches MMI, if a treating physician provides an AMA impairment rating, the claims adjuster could offer that rating to the claimant to seek to settle on either a formal pro se basis or on an informal “green sheet” to advance claim closure and avoid unnecessary litigation. If the impairment rating is a zero, Steve or his adjusters could tell claimant the rating is a zero and no monies will be offered.

If the treating physician is not familiar with AMA Guidelines and cannot provide an impairment rating, if claims handlers want to offer an impairment rating to claimant, they might have to send claimant to another doctor who would be familiar with the current AMA Guidelines to get a rating. In our view, that may make claims handlers want to start with treating doctors who are already familiar with the process and to the extent possible, avoid docs who aren’t. We also feel PPO networks are going to seek out doctors who are familiar with current AMA guidelines for similar reason.

Understanding the genius a typical physician or surgeon brings to the practice of medicine, we don’t consider the current AMA guidelines to be an “Everest-level” challenge to climb. One easy starting spot on the web is http://www.impairment.com/. If a physician clicks on their products link, you will find books, DVD’s and CD’s and other websites to get your fill of the current AMA guidelines and be rating impairment faster than you can imagine.

Please also note claimant is not required by Illinois law to take the impairment rating when offered but it is our impression the typical worker doesn’t understand the overall WC system like we do and may quietly accept a reasonable rating and avoid the delay and uncertainty of litigation. Folks who are shown a zero rating may view their claims to be at an end when they reach MMI, as happens in other states.

Finally, please note it is challenging for us to tell the industry this news because it isn’t good for defense lawyers but our overall goal at KC&A is to provide the best possible advice and counsel to everyone in this process. We appreciate your thoughts and comments.

6-21-2011; “Russian Roulette” for our Arbitrators in Illinois Workers’ Compensation. Do we really want to put a live round in the chamber of this revolver, spin it and start clicking?

Editor’s comment: The whole Illinois WC industry on all sides is scratching its collective head and wondering what the heck happened. If you aren’t aware of it, all sitting Illinois Arbitrators are slated to be fired—sort of. We have no idea what may be on the other side of July 1—we are very concerned to contemplate there may be thirty inexperienced Arbitrators handling hearings involving several billion dollars in important benefits. The IWCC’s website now has a news item which says:

Apply to be an arbitrator

House Bill 1698 provides that the governor will appoint all arbitrator positions. The governor has not yet signed the bill, but the Governor's Office has gone ahead and set up a web page for applications. All existing arbitrators must apply if they wish to be appointed.

To apply for an arbitrator appointment, click here. Go to the drop-down box and select "Workers' Compensation Arbitrators."

It is somewhat odd to note they don’t tell the public if you aren’t a sitting Arbitrator at present, you have to be a licensed lawyer to qualify for the position. The link above takes you to another site which has a heading that says:

Nominate Yourself

OFFICE OF EXECUTIVE APPOINTMENTS
APPLICATION FOR GUBERNATORIAL APPOINTMENT

As a citizen of Illinois, you are invited to use the form below to nominate yourself for membership on up to four boards, commissions, councils, or task forces. The information we collect will be used by the Governor's office in considering your interest in an appointment. It will be kept confidential and protected from disclosure to the extent permitted by law. If you have problems completing the form, please email gov.appointments@illinois.gov.

Again, it appears almost misleading to not let John Q. Public know they don’t have any shot at the job if they aren’t a lawyer. It is even weirder to see the Governor’s office admittedly collecting detailed personal information to consider interest in appointments most citizens can’t possibly be qualified for.

From our perspective, it would appear pretty clear the Governor is going to sign the 2011 Amendments to the Illinois Workers’ Compensation Act—for those of you who are asking and asking, we have no way to confirm it but every indication is that he will sign and should sign it by the end of the month to keep on track with the July 1, 2011 date for changing the status of the Arbitrators. There is no indication he will not sign it—we are advised if he doesn’t take action by August 1, 2011, the bill will become law by itself.

What it all means to our veteran Arbitrators

If he signs the new bill, Section 14 of the 2011 Amendments to the Illinois Workers’ Compensation Act confirms the term of all sitting Arbitrators shall terminate as of July 1, 2011. Incumbent or sitting Arbitrators shall continue to exercise all duties until they are appointed or successors are appointed. Thereafter all Arbitrators shall be appointed to three year terms by the full Commission. All Arbitrator appointments shall be made by the Governor with the advice and consent of the Senate.

Twelve Arbitrators shall be appointed with terms expiring in about one year on July 1, 2012. Twelve other Arbitrators shall be appointed with expiration of their terms on July 1, 2013 and all additional Arbitrators shall be appointed with terms expiring July 1, 2014. Upon expiration of a term, the Chairman shall evaluate performance of the Arbitrator and may recommend he or she be reappointed. As we indicate above, moving forward, each Arbitrator appointed after the effective date of the 2011 Amendments who has not previously served shall be required to be authorized to practice law in the state of Illinois and maintain such authorization. The Commission shall also assign no fewer than three Arbitrators to each hearing site and the Commission shall establish a procedure to ensure cases are assigned randomly. No Arbitrator shall hear cases in any county other than Cook for more than two years in each three year term.

What this is causing in the day-to-day affairs of running the Workers’ Compensation Commission which is a state agency which doles out several billion dollars in workers’ compensation benefits every year is mild to moderate confusion. Most sitting Arbitrators are cautioning everyone there is no way they can tell if they are going to handle files set for anything more than ten days from now. Lots of claims are being continued until the fall of this year to await the dust settling on all these changes. To all of our clients who want their files closed before the injury occurred, you may have to be patient until the confusion at the arbitration level ends.

The new law also means Arbitrators have very limited tenure and are subject to rapid termination whenever they consider and decide a difficult or controversial claim. As any new Arbitrator will clearly be on the hot seat, we have to wonder who they are going to align with and try to make “happy” in their rulings. Please also note the new Amendments require lots of training for Arbitrators and Commissioners. We are fairly confident defense attorneys aren’t going to be invited to the training sessions and the Arbitrators are going to be taught by the claimant side of the practice.

To the Arbitrators going through this infernal mess, we extend our best wishes and hopes. It is a sad day to see the over-politicization of your jobs but, as a wise person once said, it is hard to take the politics out of politics.

Reforming Causation in Illinois Workers’ Comp—Can We Get the ‘Surviving’ and New Arbitrators to Sign On?

We are also advised the gurus at the Illinois State Chamber of Commerce and other observers such as Attorney General Lisa Madigan are concerned about the fact causation wasn’t addressed in the legislative reforms. We again point out the legislation that was “re-interpreted” by our Supreme Court in cases such as Sisbro and Twice Over Clean to create the wildly liberal standard we are all concerned about didn’t come from legislative change and, in our view, can’t be changed in the legislature. The same language has been in place for about a century—it is up to the Commission and reviewing courts to interpret the Illinois WC Act in a fashion that demonstrates what we feel would be solid logic and sound judgment.

We assert what has happened at the Menard Correctional Center with hundreds of prison guards claiming their work is now an “injury” demonstrates an infuriating lack of judgment. We similarly attack the opinions published by Central Management Services and their expert of choice, Dr. Sudekum who we feel was hired to justify their largesse to the warden, his lieutenants and guards. Dr. Sudekum claimed turning keys in prison locks didn’t “cause” the condition of carpal tunnel syndrome or CTS but it magically “aggravated” it. He did not explain the “aggravation” concept with any real detail. We would love to cross-examine Dr. Sudekum on this opinion but please remember he wasn’t hired to defend the CTS claims and therefore won’t ever be deposed by anyone about his odd opinions. In our view, he was hired solely to justify the payout of millions of taxpayer dollars.

Please remember the Arbitrator assigned and the Commission itself did not and do not have to follow the opinions of an expert on either side—if Dr. Sudekum’s opinions were presented to them (and please note the report and opinions were not used in defense or prosecution of any claim), the Commission has it within their power to completely reject them. If the Commission were to reject such claims and we hope they will start to do so, their opinions on factual determinations are supposed to be final and not reviewable under rulings by our Supreme Court in Sisbro and Twice Over Clean.

One obvious problem with the hundreds of CTS claims for Menard prison guards not addressed by Dr. Sudekum is the normal upper extremity action of turning a key in a lock doesn’t truly involve or stress the wrist in any way. If you hold the keys in your hand to turn them in a lock like everyone in the history of key-holding and tumbler-turning does, the part of your body that turns or pivots when you open a lock on a door is your elbow. It is almost impossible to flex or extend your wrist to affect your wrist and carpal tunnel as part of turning a key in a lock. We assert every reasonable physician or ergonomic expert who would be asked about the incidence and prevalence of carpal tunnel syndrome from turning keys in locks would indicate there is no heightened risk of any kind.

We have said on numerous occasions, common sense has to come back to the Arbitration, Commission and reviewing courts in analyzing whether a condition is “related to work” or not. The “accident” can’t be the degenerated condition of the human being involved—there has always been a requirement of an actual accidental injury. We urge everyone in Illinois to consider and follow the Wisconsin WC standard—the condition isn’t “aggravated” unless claimant can demonstrate their condition is changing markedly faster than the normal degenerative process of human life because of their work.

We point out if Governor Quinn wants to reform the causation standard right now, all he has to do is pick Arbitrators who will start to employ common sense and limit causation to conditions actually and demonstrably caused by work. He can sign the new bill and appoint whoever he wants in ten days. The members of the Commission already are political appointees under Illinois. The Commissioners report to the Governor already. If he wants to reform their view of causation, all he has to do is call them to his office and tell them to get on the ball and implement a causation standard that is sustainable and makes sense to someone other than a rabid claimant attorney. Conversely, anything which might happen in the legislature to “reform” causation can be ignored by our Commission and reviewing courts. We find it maddening to hear the lack of legislative change to causation means we are somehow eternally stuck with an impossible-to-understand and unsustainable causation standard. Our hearing officers can fix it; they just have to show the brains and guts to do so—one great place to start would be at the next hearing for any prison guard claiming carpal tunnel syndrome.