3-9-12; Technology can save you plenty……Check the Footage!!

We have had several questions in the last few weeks with regard to accident investigations including both the use of webcams for recorded statements and time frames for saving security footage to complete investigations. In our view, the better you investigate an accident, the better chance you have of being sure you are paying what you owe for accepted claims, fighting claims that can and should be fought and avoiding future safety concerns that can cause thousands of dollars in lost wages and medical bills.

As we have indicated throughout the past few years, technology has become so advanced it is now so simple to obtain an inexpensive webcam to obtain your recorded accident/witness statements. Memories get fuzzy and people move on so there is nothing more helpful than being able to view the statements and determine the demeanor of the party providing the statement.

There was also a recent news story running on national media outlets which has been sent to us by multiple readers which shows one area of value from checking your loss prevention video footage immediately upon report of an accident. In many cases the footage is only available for weeks at most and checking/saving the footage helps make determinations in compensability. In one instance, you can confirm the accident occurred and be able to make determinations confirming compensability to avoid delays in treatment or benefit approval which many times lead to litigation and increased costs.

In other arguably rare instances, you may find that an “accident” involves elaborate staging and injuries which are questionably related to work. As reported from several sources, including at  http://www.nj.com/hudson/index.ssf/2012/02/authorities_north_bergen_targe.html, a well-known U.S. retailer had an employee who police say staged an elaborate scheme in an effort to fake an accident and collect workers' compensation apparently forgot cameras were rolling. The employee alleged boxes fell from a shelf as she bumped it, causing additional boxes to fall upon her and then caused her to vomit.

According to the reports, there is a 10-minute segment of video which shows the employee:

• Loosened a shelf in the storeroom that caused the boxes to fall when she bumped into it
• Positioned herself under the boxes before pulling a shopping cart containing additional items onto herself
• After another employee responded to calls for help and left to gain other assistance, the allegedly injured employee hit herself in the head with what appeared to be batteries several times
• The allegedly injured employee left the area, returned with a beverage and what appears to be Goldfish crackers and after eating some crackers and drinking some of the beverage, knelt down and vomited.
• And finally, the allegedly injured employee left again, then returned and re-staged the accident scene before taking pictures of it.

The employee later put in a claim for workers’ compensation, saying she suffered neck and back injuries. She was subsequently arrested on Jan. 17 and is currently out on bail. The charge carries a possible penalty of up to 10 years in prison upon conviction.

The most common primary comment from local sources we have spoken with indicated surprise the allegedly injured employee has already been arrested and charged with a crime, with every single one of them confirming they did not believe such cases would be prosecuted with such vigor in Illinois, even in the face of video evidence.

Brief research finds internet searches for workers’ compensation fraud in Illinois returns results mostly referring to changes in the IL WC Act in the past 7 years. The most significant examples of WC fraud prosecution actually appear to result from employers using the civil process to obtain judgments against miscreants. The point of this article is-–check your security footage promptly and routinely save it. Consider webcam statements to lock in the statements of any and all witnesses including claimant. For every case which may be WC fraud, there are likely to be many more where you may also avoid unnecessary expenses with a prompt determination of a compensable claim.

This article was researched and written by Shawn R Biery JD, MSCC and he can be reached at sbiery@keefe-law.com or call him directly at 312-756-3701.

3-9-12; Impairment ratings?? In a Knife Fight??

The line above taken and mildly changed from the classic movie Butch Cassidy and the Sundance Kid® seems appropriate for the battle currently being waged over this new concept in the Illinois workers’ compensation system. We truly feel the controversy is going to continue to go back and forth for years. There are several subplots being played out right now.

Please note the Illinois WC Commission has to consider the concept if impairment ratings are brought to the table by either side of the litigation. They won’t consider them if you don’t get them! The changes to our statute were enacted on June 28, 2011 and requires impairment ratings to be considered for claims occurring on or after September 1, 2011. Please note impairment ratings aren’t “inadmissible” as evidence of permanent disability in earlier claims—evidentiary objections to impairment ratings for earlier claims goes to their weight but not their admissibility. Arbitrators and Commissioners are not required to consider them in earlier claims but they clearly could do so, if they felt it appropriate. That said, we are not aware of Arbitrators approving pro se settlement contracts in sole reliance upon an impairment rating—the main reason it may be missing is very, very few insurance carriers and TPA’s in Illinois truly understand how things are going to work when and if ratings are used.

So here are some thoughts for everyone to consider.

First, who can provide an impairment rating? The statute only requires two things—a licensed physician and adherence to the most current edition of the AMA Guidelines—the AMA Guidelines are currently in the Sixth Edition. Please note the physician does not have to have any specific “certification” or licensure to provide an impairment rating.

Next, can/should a treating doctor provide an impairment rating? In our view, that is how medical practice in Illinois should change to adapt to the new law—treaters are best-positioned to provide impairment ratings and we ask all of them to add the concept to their quivers.

In contrast, we had one prominent claimant attorney outline their view it is a conflict of interest for a treating doctor to provide an impairment rating—with respect to the attorney, we consider that opinion to be misleading and unfounded. From clients across the U.S. we are told thousands of treating doctors in other states provide them every day of every year. For one example, Tennessee’s workers’ compensation system provides treating doctors are to outline impairment ratings at the time the employee reaches MMI. The Tennessee WC system has a state WC form for that specific purpose and their website indicates:

A medical impairment rating and the date of maximum medical improvement, as determined by the treating physician, and all other information needed to settle a claim must be documented in writing on the Attending Physician’s Report (Form C-30). Insurance carriers must make an offer of settlement in writing within thirty (30) days of their receipt of this information. The claimant must indicate approval or rejection of the offer and sign the offer of settlement.

Third, can we get an impairment rating and simply pay it in Illinois?—sure, what isn’t “illegal” is “legal.” We have no idea how it would be conflict for a treating doc in Illinois to provide an MMI determination and an impairment rating where it is effectively required by law in Tennessee. Doctors don’t have varying patient-physician conflicts. What you can learn from this colloquy is claimant attorneys in Illinois know how impairment ratings may hurt their business and they are fighting the concept in every way.

Fourth, will the Illinois WC Commission provide/create an impairment rating form to be sent to treaters a la Tennessee? Don’t hold your breath on that one unless you like walking around looking blue—there is no chance the secret-powers-that-be who run the IL WC Commission are going to let our Commissioners do something simple and easy to facilitate impairment ratings in this state. As we indicate above, the claimant bar dislikes, detests, despises and abhors ratings and they don’t want them to be easy to use. However, it isn’t against the law to send an impairment rating form to a treater for use in your claims—we are told some of our clients are modifying such forms from other states for use in their Illinois WC claims.

Fifth, can/should an IME doctor provide an impairment rating? The same prominent claimant attorney asserted IME doctors are also precluded from providing impairment ratings due to an unstated conflict. Again, we have no idea where that prohibition might be coming from—there is no rule, law, ordinance, guideline of which we are aware that might preclude an Illinois IME doctor from providing a causal connection opinion and doing the necessary evaluation to also provide an impairment rating. Again, we consider the claimant attorney’s concerns to be legally unfounded. We are told many IME doctors are already taking courses and adding this new gizmo to their medical tool chests.

Sixth, do IL WC insurers and TPA’s have to get impairment ratings on their files? In short, the answer is no with a caveat--we had a solid claims manager advise their organization is going to at least routinely ask for impairment ratings to demonstrate due diligence in claims handling. Their worry in not using impairment ratings or at least asking for them will lead to outside auditors criticizing them when millions are being paid in permanency. Please also note you are going to lose a competitive edge if other companies start to implement them and your organization doesn’t. We strongly feel impairment ratings should become part of your everyday claims practice. All the attorneys at KC&A are going to request our clients/adjusters ask for impairment ratings on every single file—the potential savings is just too great, if they are used properly and on every claim.

Seventh, can you simply get the impairment rating from the treater and pay it? We don’t see why not and ask your thoughts on this one. Please note this claims practice doesn’t technically “close” the claim—the only way to close the claim and cut off medical rights for an IL WC injury is to get a pro se settlement approved. Our thoughts on using/paying impairment ratings vis á vis the pro se settlement process is threefold:

      If claimant remains in your employ, you aren’t typically “settling” anything in an IL WC pro se settlement, as we feel it is easier to prove an aggravation than it is to prove an initial accident in this state;

      If you show claimant the rating and send them a check, most folks would feel they got fair value—this may unquestionably minimize litigation;

      If claimant gets a zero impairment rating—you may also minimize litigation to let them know their own treater didn’t outline any “impairment” and therefore you aren’t making an offer.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

2-27-12; Appellate Court says NO to “Mailbox Rule” for WC appellate filings of IWCC decisions

The snapshot on this one for legal practitioners, paralegals and law students is easy—subject-matter jurisdiction for judicial review of an Illinois Workers’ Compensation Commission decision vests in the Circuit Courts upon filing of a request for issuance of summons and an affidavit of payment of the probable cost of the record, NOT upon the date of mailing.

In Gruszeczka v. Illinois Workers’ Compensation Commission, the Appellate Court, Second District, vacated the judgment of the Circuit Court of McHenry County as having been entered in the absence of subject matter jurisdiction as claimant failed to commence his action for judicial review within the 20-day period mandated in section 19(f)(1) of the Workers’ Compensation Act. Specifically, section 19(f)(1) provides a proceeding for judicial review of a Illinois Workers’ Compensation Commission decision shall be commenced within 20 days of the receipt of notice of the decision.

Claimant sought judicial review of the Commission’s decision—affirming the arbitration decision denying claimant benefits under the Act—and mailed a request for the issuance of summons and his attorney’s affidavit of payment of the probable cost of the record to the clerk of the Circuit Court of DeKalb County. Said paperwork was filed stamped by the clerk on May 24, 2009—24 days after the Commission’s decision was undisputedly received in the office of claimant’s attorney on April 20, 2009.

The employer filed a motion to dismiss arguing the Circuit Court lacked subject matter jurisdiction to entertain claimant’s action for judicial review because it was filed more than 20 days after the Commission’s decision was received by claimant’s attorney. Claimant responded, arguing he fulfilled the jurisdictional requirement for filing by mailing all necessary documents to the clerk within 20 days of his attorney’s receipt of the decision. Attached to claimant’s response, were affidavits of claimant’s attorney and a clerk at the attorney’s office stating the necessary paperwork was mailed to the Circuit Court Clerk on May 4, 2009. There was no evidence of when the Circuit Court Clerk received the document.

The Circuit Court denied the employer’s motion to dismiss for want of jurisdiction. Upon transfer of the matter to the Circuit Court of McHenry County, a motion to reconsider was also denied.

In reversing the lower court and dismissing the appeal, the Appellate Court refused to adopt the “mailbox rule”—i.e., the time of mailing is the time of filing for jurisdictional purposes—reasoning section 19(f)(1) of the Act was clear and unambiguous, should be given its plain and ordinary reasoning and must be strictly adhered to in order to vest the Circuit Court with subject-matter jurisdiction over a judicial review action under the act.

The Court further reasoned the legislature would have to engraft the “mailbox rule,” not the judiciary under the guise of statutory interpretation. Unwilling to interpret section 19(f)(1) of the Act as providing for a ��mailbox rule”, the Appellate Court vacated the judgment of the Circuit Court and held claimant failed to commence his action for judicial review within the 20-day period prescribed by the Act.

This article was researched and written by Sean C. Brogan, J.D. Please feel free to send questions and comments to Sean at sbrogan@keefe-law.com.