8-22-11; Gov. Quinn signs “landmark” bill designed to prevent injured employees from receiving WC benefits for injuries stemming from illegal activities. Thank you Governor, but what took us so long?

We note the folks at the Belleville News-Democrat must be running out of ink for their presses with the recent wealth of press coverage bestowed on our IL WC system. While their most recent article publicizes a positive step in WC reform in Illinois, you don’t have to look too hard to see the fly in the ointment.

Reported last week by the Belleville-based publication, Governor Quinn has signed “landmark” legislation denying WC benefits to employees injured while committing select criminal activities leading to their injuries. Called Uhl’s Law after the two Uhl sisters killed in 2007 by State of Illinois Trooper Matt Mitchell while driving in excess of 120 mph and texting his girlfriend, the law prohibits workers convicted of reckless homicide, aggravated drunk driving or any “forcible felony” from receiving workers' compensation benefits for injuries sustained during the commission of that crime.

Proposed as HB 1147 and signed into law August 9, 2011, the exact language of the Act, amended as to Section 11, states as follows:

Notwithstanding any other defense, accidental injuries incurred while the employee is engaged in the active commission of and as a proximate result of the active commission of (a) a forcible felony, (b) aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, or (c) reckless homicide and for which the employee was convicted do not arise out of and in the course of employment if the commission of that forcible felony, aggravated driving under the influence, or reckless homicide caused an accident resulting in the death or severe injury of another person. If an employee is acquitted of a forcible felony, aggravated driving under the influence, or reckless homicide that caused an accident resulting in the death or severe injury of another person or if these charges are dismissed, there shall be no presumption that the employee is eligible for benefits under this Act. No employee shall be entitled to additional compensation under Sections 19(k) or 19(l) of this Act or attorney's fees under Section 16 of this Act when the employee has been charged with a forcible felony, aggravated driving under the influence, or reckless homicide that caused an accident resulting in the death or severe injury of another person and the employer terminates benefits or refuses to pay benefits to the employee until the termination of any pending criminal proceedings.

Reported by BN-D, Uhl's Law will prohibit the payment of workers' compensation claims if a felony conviction was obtained or guilty plea secured relative to a host of felonious activities outlined above. "It's simply common sense” said a proponent of the law “that taxpayers and employers should not have to pay an employee for an injury that arises out of a commission of a felony while on the job.”

"This is another tool to make sure that workers' compensation benefits go only to those who deserve them" Governor Quinn is quoted as saying in a written statement. Well, excuse us for noticing, Mr. Governor, but where has this “common sense” been for the past several decades?

We commend the Governor for effectuating what our hearing officers should have been determining all along; that an individual committing a criminal act removes him or herself from the course and scope of his/her employment while doing so. Therein lies the rub. Since this author started in this industry back in the 20th Century, our “intoxication defense” has been non-existent. We have awarded benefits to injured workers so intoxicated on alcohol that after driving themselves to work they lost limbs due to their intoxicated state, Clarence Saffold v Treasurer of the State of Illinois/Second Injury Fund, 05 I.W.C.C. 0528, 00 WC 15622, to workers so intoxicated on cocaine they fell to grave injury, Delbert Ray Dilley v. A-Lert Construction Services, 08 IL.W.C. 001654, 10 I.W.C.C. 0757, 2010 WL 3619609, (Ill.Indus.Com'n), August 10, 2010, and to workers so high on marijuana they fell to their death. Lakeside Architectural Metals v. Industrial Com'n 267 Ill.App.3d 1058, 642 N.E.2d 796 Ill.App. 1 Dist.,1994. Our system has awarded benefits to an injured worker so high on cocaine and alcohol that his ER treatment providers had to physically restrain him and catheter a urine sample just to determine what drugs he was on so they could administer proper treatment and medications. Foreman v. ABF Freight, 01 IL.W.C. 21897, 07 I.W.C.C. 0033, 2007 WL 726741, (Ill.W.C.C.), January 12, 2007.

We note the irony that once the State of Illinois faces such potential, the Act must be changed. Ironically, it appears the unfortunate tragedy of the Uhl sisters’ death, which was not the result of an intoxicated driver, may now result in the first set of teeth for our intoxication defense in decades following an apparent refusal of our Illinois Arbitrators to accept any such intoxication defense.

Again, we applaud the Governor for making this change, which hopefully will now force the hands of so many Illinois administrators and reviewing courts who for so long have been awarding benefits to individuals injured during the commission of criminal acts, including intoxication. We further applaud the Governor for not limiting the denial of benefits to crimes of intoxication but also violent crimes, reckless homicide and other felonious acts. But it raises a glaring question, particularly in light of the June 28, 2011 amendments: What took us so long?

This article was researched and written by attorney Joseph Needham who can be reached at jneedham@keefe-law.com. Please do not hesitate to post them on our blog.

8-22-11; Illinois WC system used to have the highest medical costs/reimbursements in the U.S. but The Times, They are A’Changing

The 2011 Amendments to the IL WC Act were passed by both Houses of our Legislature in late May and the Governor signed the law on June 28, 2011. Here are some thoughts on the many changes coming at our readers:

·         Section 8(d)(1) changes go into effect for injuries on and after Sept. 1, 2011. Wage differential benefits shall be calculated to the age of 67 or 5 years from when an award becomes final, whichever is longer. This reduces wage loss exposure significantly, as wage loss benefits have traditionally been calculated through a claimant's life expectancy. Reserves need to be adjusted on your new claims.

·         For injuries on and after September 1, 2011, Section 8.1(b) implements the use of AMA Guidelines to determine impairment ratings. Such ratings are to be considered by arbitrators but cannot be the exclusive factor in determining a PPD award.

·         Fee Schedule Changes: Effective September 1, 2011, for services performed on and after September 1, 2011, the charge shall be no more than 70% of the fee scheduled amount. If a fee schedule amount cannot be determined, a 53.2% reimbursement rate shall apply. Prescriptions filled outside a licensed pharmacy shall be reimbursed at a rate that does not exceed the Average Wholesale Price, plus $4.18 as a dispensing fee. Implants shall be reimbursed at 25% above the manufacturer’s invoice price, less rebates.

·         Effective September 1, 2011, the timeline for prompt payment of an accepted medical bill is reduced from 60 days to 30 days when a provider provides a substantially all data required to pay the bill. This imparts an obligation on the insurance companies or self-insureds to promptly identify the basis for non-payment within a 30-day period rather than the prior 60-day window.

·         Utilization Review Guidelines: For treatment on and after Sept. 1, 2011, upon written notice the employer or an insurer is invoking utilization review, the provider must submit to the utilization review process and make a reasonable, timely and complete report of clinical information needed to support the request. If a provider fails to make such reasonable efforts, the charges for treatment or services may not be compensable nor collectible by the provider or claimant. Any findings upon utilization review must be provided to the provider and employee. An Illinois employer may only deny payment or refuse authorization on the grounds the extent and scope of medical treatment is excessive or unnecessary pursuant to utilization review guidelines.

·         Effective September 1, 2011, a petitioner must establish by the preponderance of the evidence a variance from utilization review standards is reasonably required before treatment denied under UR will be awarded. There is a requirement the final reviewing professional must be either available in the State of Illinois for interview or deposition, or be available via telephone, video conference or any electronic means for remote deposition purposes.

·         Section 8(a)(4) of the Illinois Workers’ Compensation Act outlines when an employer has an approved “preferred provider program” (or PPP) pursuant to Section 8.1(a), the employer shall, in writing on a form promulgated by the Commission, inform the employee of the preferred provider program and then subsequent to the report of injury, the employee may choose in writing at any time to decline the preferred provider program in which case that would constitute one of the two choices of the medical providers to which the employee is entitled.

·         We are not aware of any difference between all the “PP’s”—we feel these are confusing but the terms represent different names for the same thing.

o   Preferred Provider Programs or PPP’s,

o   Preferred Provider Networks or PPN’s,

o   Preferred Provider Organizations or PPO’s,

o   Preferred Provider Associations or PPA’s.

·         The IL WC Commission has not “promulgated” the “opt-out” form to allow an injured worker to opt out. We called the IWCC again last week and still don’t have an answer. We are pretty sure they will punch it out on their great website when ready to roll but we will also let our readers know when it lands. The Illinois Department of Insurance is accepting applications to certify/approve PPP’s but, to our knowledge, they have not certified\approved any. We expect that to change in the very near future. Either way, these sections of the IL WC Act are not yet in force.

·         We feel these WC Amendments are going to create a Plan A and Plan B type of medical care from the perspective of WC claims managers.

o   Plan A is the PPP that will have its own internal controls and costs on medical care they provide. Lost time should also be implicitly limited as part of such care.

o   Plan B is the opt-out situation that will have traditional and inefficient controls like IME’s, UR, the IL Medical Fee Schedule, surveillance and litigation to “control” overtreatment and overbilling.

·         No one in the industry is certain how employers and PPP’s are going to intertwine. We expect the Liberty Mutuals, Zurich’s, Travelers and other insurance carriers/TPA’s to align with preferred PPP’s, as they did with UR providers, but we do not currently have word this is happening. As they do with other vendors, some carriers may try to make their PPP of choice exclusive in exchange for favorable business relations they do or don’t disclose to their accounts.

·         We were asked this week if a large Illinois employer can pick their own PPP and tell their TPA/carrier who to use. The answer is probably—if an employer is big enough, you stir the coffee and not vice-versa.

·         We were also asked this week if the State of Illinois will roll out a PPP for State workers. To be blunt, the answer is there is probably too much red tape and they are probably too disorganized to try to actually save the taxpayers a dime. It will also be hard to find a PPP that won’t mind having its providers paid in 2014 or later for medical services performed this year. Governor Quinn won’t address the issue unless and until the press causes a stink about inaction and then he will fire a bunch of folks to bring in more folks who have no idea what to do—in other words, Illinois government at its finest.

·         From the perspective of medical providers, such as doctors, hospitals and diagnostic facilities, PPP membership is not exclusive. They can join every PPP and have different contracts and reimbursement packages with each PPP.

·         Subsection 8(a)(4) (C) indicates prior to the report of an injury, when an employee chooses non-emergency treatment from a provider not within a preferred program, this will constitute the employee’s one choice of medical provider to which the employee is entitled.

·         Section 8.1(a) of the Illinois Workers Compensation Act outlines a Preferred Provider Program on the effective date of the Act allows an employer to utilize the program approved by the Illinois Department of Insurance.

·         This Section also outlines any provider network must include “adequate” occupational and non-occupational providers. It shall include an adequate number and types of physicians to treat common work injuries in the general geographic area where the employee resides. The Director of Insurance may deny approval of any such preferred provider program where it is determined a policy or procedure is put in place which causes unfair reduction or delay of medical treatment.

·         A word of caution: it appears the employee, once he or she elects to treat within the provider network is permitted to choose any physician within the network without restriction on the choice of physicians. Therefore, it appears employees may be allowed to seek numerous second, third or fourth opinions, as long as the providers are within the network.

·         By offering a WC PPP, an employer cuts claimant’s choice of doctors in half. Just by offering it, the worker can only choose one doc and a single chain of referrals. Illinois employers can now openly direct care into a network that should understand your needs.

·         Our recommendation to all Illinois employers is to push WC PPP’s early and often. We are recommending our IL clients and prospective clients tell all workers about the PPP when they are hired at new employee orientation. We are confident savvy IL employers will have their supervisors route the workers into the WC PPP when they start care. We feel IL employers should push injured workers to stay in the WC PPP at all times. We feel IL employers should consider putting the WC PPP information and contacts on the company website.

·         At the end of care, we feel PPP docs may give out impairment ratings and offer the ratings to close claims and avoid litigation.

·         If a WC PPP doc or provider stinks and is routinely overtreating, we feel employers are going to yell at their carriers/TPA’s to get them in line quickly or face being fired/ousted by the WC PPP. This is another positive feature to WC PPP’s.

·         WC PPP’s should provide medical reimbursements lower to much lower than the IL medical fee schedule.

·         No one is sure if companies are going to have one PPP for both group and WC medical care. It makes sense to us but we are waiting and watching to see what the industry is doing with the idea.

8-22-11; Hut One, Hut Two, Hut What??? You can’t pay college football players if you understand the maze of U.S. human resources laws and rules including workers’ compensation coverage/cost

We read the news out of the University of Miami where another college football scandal has erupted just prior the first kickoff of this season. A convicted Ponzi-schemer named Nevin Shapiro pled guilty and basically ratted out any number of players to whom he provided lavish gifts as a “booster.” On August 16, 2011 in a jailhouse interview with Yahoo Sports writer Charles Robinson, Shapiro made good on his promise for the revelations exposing a lack of NCAA oversight which apparently allowed his illegal and unethical behavior to continue unimpeded for years. Thus far 72 athletes are alleged by Shapiro to have received "impermissible" benefits from him between 2002 and 2010. Various news outlets have speculated if the claims are true the NCAA could impose the death penalty on the Miami football program

One amazing thing we saw mentioned as a method to “cure” or end this problem is to make the players “professional” and give them a weekly or monthly stipend on top of tuition, room and board. Some members of the college sports press bring this concept up occasionally. As veteran defense attorneys, we want to make it clear the thinking on this concept is about as nutty as one can consider.

Please first note college football players are already given lots of “compensation” at a relatively high cost to the schools they attend. Schools like Notre Dame, Nebraska and Northwestern invest something like a quarter-million dollars just in tuition, room and board for each of their four-year scholarship athletes. On top of that, Division I schools provide trainers, travel, equipment, orthopedic surgeons and related facilities. While we hate to consider the possibility, there may be a crazed claimant attorney out there somewhere who could make a compelling argument the players are not as “amateur” as that title might otherwise indicate.

What is the problem with giving the kids a few bucks on top of all of it to keep them happy and possibly lower the chance future scumbags like Nevin Shapiro will tempt them? Well, human resources, including workers’ comp, benefits are a concern that could rapidly destroy college university budgets. If you made all of the football players at Northwestern “professionals” by giving them a salary of, for example, $500 per month, wouldn’t they be entitled to all the other rights and benefits of all university employees? Shouldn’t they have a right to pension coverage under ERISA? Wouldn’t they be similarly covered under ADA and FMLA? Would they be entitled to 100% coverage under workers’ compensation of all football-related medical problems—not just while they are athletes but for the rest of their lives? Would they get TTD? Would colleges and universities have to provide vocational rehabilitation? Would the injured player be entitled to permanent partial disability for loss of use of the leg, arm and foot?

Learn a lesson from Da Bears—WC in IL is Wildly Pricey when it comes to Football

Please note the Chicago Bears used to fight their workers’ compensation battles with very poor results. For one example, we remember a great player named Ted Albrecht who was a star tackle for the Bears. He was drafted in 1977 and played 5 years through the 1981 season. In 1982 he was injured in training camp doing exercises and never played again. He eventually retired and claimed his retirement was due to on-field injuries. The Bears asserted a football player could not reasonably have expected to hold his position for the foreseeable future. Ted Albrecht began a travel agency and worked as a sportscaster and earned about $80,000.00 annually—this was about 40% less than what he made as a football star. Albrecht claimed a wage differential award but it was denied by the Arbitrator, IIC and circuit court. They all felt a PPD award was appropriate. Nevertheless, the Appellate Court reversed and held Petitioner had a reasonable basis for assuming continued employment as a professional football player, ignoring testimony from the Bears general manager that the average career of an offensive lineman is less than 10 years. Despite solid income in his post-football career pursuits, in Albrecht v. Industrial Commission, our Appellate Court ruled he was entitled to 2/3 of the difference between what he was making as a Bear and the lower amount he was making as a travel agency owner and sportscaster for the rest of his life. If he is still receiving those benefits, we assure you it could have added several million to his post-Bear income.

At present, it is our understanding the Chicago Bears don’t truly “fight” their workers’ compensation claims any further—we haven’t seen any litigation from them in years. It is our understanding they basically budget for it and settle the exposures at the end of each player’s career.

Minimum WC Benefits in IL would be Expensive for College Programs

Along with all the HR rights outlined above and more, a “professional” college football player who would be moderately to seriously injured playing for or against any school at a game in Illinois would be entitled to our minimum benefits for amputation, total and permanent disability and death. That weekly rate is currently $466.13. For example, a 20-year-old halfback who suffered a significant injury and would be adjudicated totally and permanently disabled would receive no less than $466.13 weekly for life. On an annual basis, that benefit totals $24,238.76. Assuming a sixty-year life expectancy, the full undiscounted cost of such benefits is $1,454,325.60. On top of that amount, Illinois employers are required to contribute to a fund that pays COLA increases.

College football players could similarly make claims for “loss of trade” that is now so popular in Illinois “china doll” construction industry where virtually every claimant lawyer is now seeking six-figure benefits for the slightest elbow or knee surgery by claiming the worker is shut out of a lucrative trade even though the construction industry is at a complete halt in our state. We are seeing million-dollar demands for fractured ankles and elbow surgeries that completely heal—those are the sorts of injuries that happen every day on a Division I football field.

Please also note the injured football player would not have to be on an Illinois team—these benefits would apply to any injury occurring in our state regardless of which team the injured player was on.

In summary, we want our readers to understand the concept of paying college football stars might sound good but we hope the NCAA and the college presidents who run it understand they continue to get a pass on the human resources legal labyrinth in this country and they are best served to stay as far from it as possible.