8-30-11; Is the “Manifest Weight of the Evidence” an actual WC rule or is it only a guideline? Will County Deputy Sheriff awarded IL WC benefits despite his misconduct, potential...

In our view, the Illinois Appellate Court, Workers’ Compensation Division issued a ruling that appears to contradict the last ruling from the Illinois Supreme Court on the “manifest weight of the evidence” rule. In Sisbro and Twice Over Clean, our Supreme Court issued a clarion call to the reviewing courts below on factual issues. They basically said whatever the Workers’ Compensation Commission finds with regard to the facts is the final ruling—don’t supplant factual determinations with your own views on appeal. In reaching this conclusion, the Supreme Court reversed two denials by the Appellate Court and provided benefits to injured workers.

Now, for the second time since the above-named rulings of the Supreme Court, the Appellate Court, Workers’ Compensation Division has reversed denials by the Commission on the facts. In our view, the members of the Court’s majority have supplanted their view of the facts over the ruling by the Commission below. We again feel the entire IL WC business community continues to ask the rhetorical question of whether the “manifest weight of the evidence” rule actually applies only in situations to insure benefits are uniformly awarded. We have never seen the Appellate Court rule to reverse a claim on the “manifest weight” to deny benefits. We are also pretty confident the taxpayers of Will County aren’t thrilled to see a sworn peace officer awarded substantial WC benefits in a situation in which he was acting in derogation of duty and could have threatened the safety of other officers and the public.

In Johnson v. IWCC, (No. 2-10-0418, issued August 15, 2011), a 3-member majority of the Workers’ Compensation Division of the Illinois Appellate Court found injuries sustained by a Will County deputy sheriff compensable under the IL WC Act despite his having been in violation of clear rules of employment. Will County deputy sheriffs are prohibited by their Code of Conduct from leaving their designated patrol area or Will County without first securing a supervisor’s permission. There are numerous reasons for this rule, the most important of which is protection of fellow officers along with John and Jane Q. Public which is the sworn duty of all deputy sheriffs.

However, on July 20, 2007, the record on appeal indicates Petitioner left his patrol area and the geographic boundaries of Will County to attend to the personal errand of collecting his mail. Despite having a working radio in his vehicle, he did not obtain prior permission from a supervisor or otherwise notify anyone else of his frolic and detour from work. While collecting his personal mail in a remote location outside the county, Petitioner was contacted and dispatched to assist another deputy sheriff. Petitioner alone was dispatched with the understanding of the dispatcher that, if had he been in his assigned and expected patrol area, claimant Johnson would have been the closest deputy to the scene.

Petitioner did not inform the sheriff’s dispatchers he was outside of his patrol area or outside the County of Will. Over the call, Petitioner appears to have knowingly advised the deputy sheriff seeking assistance he would arrive in 3 to 5 minutes. In reality Petitioner was 10 to 15 miles from the scene, giving obviously incorrect positioning to a fellow officer, possibly endangering them. Petitioner testified at arbitration he did not provide dispatch or his co-worker his true location. The dispatcher testified had she known Petitioner was not in his assigned patrol area and was outside Will County she would have assigned the call to another officer.

While still outside of Will County and en route to assist his co-worker Petitioner was involved in a motor vehicle accident (MVA) when he entered an intersection against the light without activating his emergency flashers. Except for his personal deviation Petitioner would not have been driving through the intersection where he was injured. Petitioner sustained injuries to his person. He was eventually returned to full duty.

The Will County Sheriff’s Office disciplined Petitioner for leaving the County without permission. A Chief Deputy testified by leaving his assigned patrol area without permission Petitioner adversely impacted policing and public safety in that area of Will County.

In light of Petitioner’s violation of the Code of Conduct, engagement in a personal deviation, and failure to advise dispatch and his fellow deputy of his true location, the assigned IWCC panel denied the claim. We salute them for making the call as they saw it.

In reversing the Commission’s ruling, the Appellate Court, Workers’ Compensation Division found Petitioner’s violation of his rules of employment did not take him outside “the sphere of his employment.” They found there was only one possible conclusion from the facts.

We note Presiding Justice McCulloch joined with another justice to dissent from the majority’s opinion and noted:

The Commission also finds that the accident arose out of Petitioner’s own misconduct, rather than his employment. Pursuant to Section 25 of Respondent’s code of conduct, Petitioner was prohibited from leaving his assigned patrol area without securing permission from his supervisor. Petitioner violated this work rule when he left his assigned patrol area without permission. If an officer is outside of his patrol area when he receives an assignment from dispatch, he is expected to inform dispatch of his location so dispatch can assign another officer to the call. However, when Officer Schmidt assigned Petitioner  to assist Deputy Kirsch, Petitioner failed to inform her of his actual location. Finally, when Deputy Kirsch contacted Petitioner to request his estimated time of arrival, Petitioner falsely told Deputy Kirsch that he would arrive on the scene within three to five minutes. In reality, Petitioner was fifteen minutes away. The Commission finds that Petitioner exceeded the speed limit when proceeding through the intersection of Route 59 and 75th Street against the light in an attempt to arrive at Deputy Kirsch’s location quickly enough to cover his own misconduct.

As the majority states, “an employee’s injury is compensable under the Act only if it arises out of and in the course of employment. 820 ILCS 305/2 (West 2006).” Will County and the Sheriff are correct. Claimant was engaged in a personal deviation that broke the causal connection between his employment and his injuries.

In our view, there are about fifteen facts which support the ruling of the Workers’ Compensation Commission. Therefore, with respect to the members of the Appellate Court, we consider it wholly incongruous for the majority to rule the “opposite conclusion is clearly apparent.”

The ruling is on the web at: http://www.state.il.us/court/Opinions/WorkersComp/2011/August/2100418WC.pdf. This article was researched and written by Matthew A. Wrigley, J.D.

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.