12-27-11; What In Tarnation is Evidence-Based Medicine? Is there any chance our Commissioners and Arbitrators will follow it in evaluation of WC claims, as the statutory scheme now requires?

Along with all the other interesting and quizzical things that happened in our Illinois state capitol during the spring legislative session this year, “evidence-based” medicine landed in the Illinois Workers’ Compensation Act in a number of interesting places. If you search the Illinois Workers’ Compensation Act, you may note our administrators are supposed to consider evidence-based medicine as part of analysis of utilization review protocols. The Act also mandates in Section 13 and 14 that both Commissioners and Arbitrators undergo training in “standards of evidence?based medical treatment.”

The View of EBM from Defense Lawyers in the Trenches

Your editor and the 14 lawyers at KC&A view evidence-based medicine in the simplest of terms—the medical/legal concept appears to require something more than subjective complaints to support continued requests for medical care and later, permanent disability. Why is this important? Well, hundreds of thousands of Illinois WC claims may be based on nothing but subjective complaints. In fact, millions and perhaps billions of dollars are awarded every year due to complaints of pain unsupported by diagnostics or other clinical evidence. We assure you that phenomenon may be one of a handful of things in the workers’ compensation matrix that are causing companies who have been in Illinois for years to start moving operations elsewhere.

What is wrong with awarding medical care and/or disability in whole or in part based on complaints voiced by claimants that are not supported by diagnostic or other objective clinical evidence? Well, duh. Claimants want money—the whole workers’ compensation system is about getting money from employers for three things—health care, lost time or TTD and permanent disability. The other side of the simple WC concepts is employers want to be sure to pay money when they owe it but only when they owe it. They don’t want to pay thousands of dollars to doctors and claimants solely due to claimants making unsupported and unsupportable soft-tissue complaints.

Defining EBM/EBP

So how will evidence-based medicine change all of that? Well, evidence-based medicine (EBM) or evidence-based practice (EBP) aims to apply best available evidence gained from scientific methods to clinical decision making in providing medical care. EBM seeks to assess the strength of evidence of the risks and benefits of treatments (including lack of treatment) and diagnostic tests.

Evidence quality can be measured based on source type from meta-analyses and systematic reviews of double-blind, placebo-controlled clinical trials at the top end, down to “conventional medical wisdom” at the bottom of the factor list, as well as other factors including statistical validity, clinical relevance, currency, and peer-review acceptance. EBM/EBP recognizes many aspects of health care depend on individual factors such as quality and value-of-life judgments, which are only partially subject to scientific methods. EBM/EBP seeks to simplify and clarify parts of medical practice that are in principle subject to independently verifiable scientific methods. These concepts seek to apply these methods to ensure the best prediction of outcomes in medical treatment, even as debate continues about which outcomes are desirable. As this scientific approach is used in any number of interrelated medical fields, including dentistry, nursing and psychology, evidence-based practice may be a more encompassing term than evidence-based medicine.

There are three distinct, but interdependent, areas of evidence-based medicine.

·         The first is to treat individual patients with acute/chronic problems with treatment reviewed and fully supported in the most scientifically valid medical literature. Medical practitioners select treatment options for specific cases based on the best research for each patient they treat.

·         The second is systematic review of medical literature to evaluate the best studies on specific topics. Increased use of the web and information technology turns large volumes of information into practical guides.

·         Third, evidence-based medicine can be understood as a medical "movement" in which advocates work to popularize the method and usefulness of the practice in the public, patient communities, educational institutions, and continuing education of practicing professionals.

Will the “IME doctor-bashing” in IL WC ever end? Can EBM/EBP stop this by requiring science and not just unsupported opinions?

One thing we hope EBM/EBP may stop is the concept of claimant attorneys and some Arbitrators personally and professionally attacking IME doctors. The pinnacle of this preposterous concept is the RICO action currently pending in Michigan against an Illinois trucking company, a TPA and an IME doctor—they are seeking treble damages due to denial of claims in reliance on an IME. Right behind this age-old and time-tested doctor-bashing concept is the same group focusing their cannons and criticism on UR doctors.

What we have asked IME doctors across our state and UR doctors across the U.S. to do is not simply provide their “personal medical” opinions as to whether surgery is needed or work accommodations might be appropriate. In our view, this sets up the comparison some Arbitrators and Commissioners love. If some hearing officers view the legal-medical decision as being “IME versus Treater”, the treater always wins, giving claimant whatever care/disability/accommodations they seek.

In our view, IME and UR doctors need to rely primarily on science—don’t just say surgery is or isn’t needed, add the clinical studies, the JAMA articles, the science of your decision. If you disagree with the treater, it is a complete mistake to simply state your opinions in comparison to the other doctor—look at why that doctor is claiming a course of treatment is reasonable, necessary and related and attack the science that may or may not be present. The goal of everyone in a disputed WC claim is to do or not do what is in the best interests of the patient—that should be the focus of the entire WC system in Illinois and across our great country.

A clear thought for everyone who has read the many newspaper and media articles about the “Menard C.C. scandal” where millions of dollars have been spent in the last several years for carpal tunnel syndrome at a single prison facility in rural Illinois. The state’s WC adjusting group hired an expert named Dr. Sudekum and he provided a bald medical opinion about causal connection with literally no scientific backing of any kind. In reliance on what we feel was an unscientific and unsupported-by-studies personal medical opinion, the State of Illinois stop defending itself and simply paid and paid and paid. If the State and its experts started to analyze medical records/case studies and WC claims from other prison facilities outside our nutty state and see no other prison on the planet has the same types of medical care or claims at all, evidence-based medicine might knock all of those claims out.

However, none of it will come to fruition if our hearing officers/administrators don’t understand it and start to follow it. Like UR and other new concepts, we are waiting and watching their rulings and will report as news comes in.

12-22-11; Important ADA ruling of note—truck driver who could drive long-haul but not city work not entitled to accommodation under federal law

This ruling cuts in lots of directions but is clearly one all of our readers should be aware of.

In Powers v. USF Holland, Inc., No. 10-2363 (December 15, 2011), the Seventh Circuit Court of Appeals ruled the Federal District Court did not err in granting Defendant-employer's motion for summary judgment in Plaintiff's action alleging Defendant USF Holland violated ADA by enforcing its “100% healed policy” when refusing Plaintiff's request

·         To return to work with certain medical restrictions and

·         By failing to provide him with reasonable accommodation of allowing him to return to work as long-haul truck driver that did not require Plaintiff to perform certain loading dock duties.

The ruling indicates Plaintiff was a long-haul driver who asked for short-haul or city driving to adjust for social and family needs. He then claimed he became disabled doing the short-haul/city work and wanted lots of accommodations, as he couldn’t switch back to long-haul due to the provisions in the collective bargaining agreement.

The Seventh Circuit ruled Plaintiff failed to show he was qualified under ADA as individual who was substantially limited in major life activity of working, where record showed Plaintiff was capable of performing long-haul truck driving work. The Federal Appellate Court also noted the record showed at most that he was unable to return to a city-driver position that he held at time of his medical leave of absence.

Probably most important, the Seventh Circuit further held Defendant's “100% healed policy” did not subject defendant to per se liability under the Americans with Disabilities Act where the record below showed Defendant considered Plaintiff's alleged impairment as affecting only Plaintiff's ability to perform Defendant's city-driver position.

We want our readers to know we represent USF Holland but not in the claim outlined above. We appreciate your thoughts and comments.

12-22-11; Can you audit or do wellness checks on total and permanent claimants in IL? Can you ask a claimant to demonstrate they remain alive? Can you ask a claimant to prove they remain totally...

We were asked this question by a reader and consider it an important thing for adjusters and risk managers to consider. In our view, Illinois has three ‘types’ of total and permanent (T&P) disability awards.

In short, there are

1.    T&P’s that are in the category our courts called “odd-lot” where a worker is able to magically prove their disability blocked them from locating work within their restrictions or disability. We call this “lazy-lot” T&P’s because there is no question that, in our view, some of such claimants get the award because they do a great job of “unfinding” work, like claimants seeking unemployment benefits who supposedly can’t find jobs for as long as four years. In our view, such persons aren’t actually trying and U.S. benefit systems like workers’ compensation and unemployment systems reward it. This T&P category would also include state, county and municipal employees who could be returned to government jobs in different agencies but the governments don’t or won’t rehire them, claiming work or union rules block rehiring.

2.    T&P’s where all the doctors say claimant will never be able to work again in any job. For one example, a worker with a severe closed head trauma who has difficulty walking, speaking, eating would fit into this category.

3.    T&P awards called statutory T&P’s—without meaning to be insensitive, this award requires the injured worker to have been paralyzed, blinded or lose several major body parts. Such workers can work after suffering such catastrophic losses and our liberal courts won’t allow their benefits to be cut. If someone is blinded or loses an arm and a leg, it is hard to fight about cutting lifetime benefits if they return to work.

Claims involving T&P from numbers 1-2 above can and should be at least annually reviewed. An insurance carrier/TPA that doesn’t annually audit the status of such claims at least annually may continue to issue T&P benefits to a “dead person” and such weekly checks may start to be cashed.

Please note the categories above aren’t as clearly outlined in our IL WC Act. In fact, the words “odd-lot” total and permanent disability don’t appear anywhere in the Act—in our view, it was judicial legislation to create the concept. More conservative judicial rulings could end this clunky concept in a single bound and Illinois’ injured workers would adjust.

To answer the question about what an employer can do to monitor ongoing payment of T&P benefits in situations we number 1-2 above, you can get an IME on what we feel should be an annual basis. If the injured claimant doesn’t attend the IME, you can move to suspend continued payment of T&P weekly benefits. In King v. Illinois Industrial Commission, the employer filed a motion to suspend the claimant's PTD benefits pursuant to section 12 of the Act, arguing compensation should be suspended because the claimant refused to comply with a section 12 request for a medical examination. After a hearing, the Commission denied the motion, but ruled Section 12 gave the employer the right to a medical exam and ordered the claimant to submit to such an exam. The circuit court confirmed the decision of the Commission and the reviewing courts agreed.

The IL Supreme Court then considered whether a claimant who received a PTD award pursuant to section 8(f) can be required to submit to an employer's request for medical examination pursuant to Section 12, even though the employer has not filed a petition to modify claimant's benefits pursuant to section 8(f) or section 19(h). The Supreme Court noted Section 8(f) provides for termination or reduction of a PTD award where a claimant returns to work or is able to do so and earns or is able to earn as much as before the accident. They also noted Section 19(h) grants employers a limited right to have certain compensation awards revised, but only within a specific number of months after the award becomes final.

In King, the Supreme Court also noted Section 12 required a claimant to submit to a medical exam at the request of the employer and the employer could suspend payment of benefits if the claimant refused to submit to such an exam. In summary, the Supreme Court held an employer may suspend payment of benefits where a T&P claimant refuses to submit to a Section 12 medical exam, even in the absence of a petition pursuant to Section 8(f) or Section 19(h).

From our review of that decision, an Illinois employer has a right to make a medical inquiry into the status of disability of a T&P claimant. However, please note in a later ruling in a decision named Boyd Electric, our Appellate Court ruled Illinois employers did not have a right to request copies of tax returns or other indicia of a T&P claimant returning to work. While we completely disagree with that ruling, it does point to the focus of what we feel are hyper-liberal reviewing courts in this state—their focus isn’t typically on whether claimant has or can return to work. The focus of our courts is on a change in “disability” that we consider to be a magical concept that makes sense only to lawyers.

As an example, in the ruling in Cassens Transport, wage loss differential benefits couldn’t be reduced solely in reliance on heightened post-award income of a claimant. The Illinois reviewing court said lifetime wage loss differential benefits could only be reduced if the worker’s disability had changed. What this means is the benefits are set/awarded based on two factors; disability and post-injury income levels. To reduce or modify them at a later time, the reviewing court indicated they would only measure one of the two concepts—“disability” whatever that might mean.

Therefore, if a claimant with a triple-operated low back got a wage differential award of $400 a week due to proof of weekly wage loss and the worker later returned to start a competitor to Microsoft© and was now making several billion a year, the employer would still be required to continue to pay lifetime wage loss benefits, as if the wage loss were still ongoing if the employee could indicate the “disability” remained the same. Most Illinois employers and insurance carriers/TPA’s consider that outcome to be ludicrous.

In our experience, you simply have to remember you are dealing with Illinois. Long story short, wellness checks or annual audits of total and permanent disability claimants are legal and an important part of Illinois WC claims-handling. If insurance carriers/TPA’s and/or self-insured employers aren’t doing them, there is a strong possibility they are overpaying benefits. Please let us know your thoughts.