7-17-12; As the Beatles’ song says, “it was twenty years ago today”--20 years ago this month in July 1992, we started writing this KCB&A Update

When this was first written/printed and published, we put it out with a bubble-jet printer as a three-fold flyer that was mailed to our readers (does anyone remember “snail mail.”). About a dozen years ago, it morphed into email and we currently only print and mail it to one former Arbitrator who doesn’t “do” email. The initial readership was about 500—today, we have over 7,500 weekly readers that we know of. It appears there are lots of “secondary readers” who read the KCB&A Update and send it along to their friends and colleagues.. We have written numerous articles from questions received from our readers. We thank everyone for your contributions and support over these many years.

The goal of the Update over the decades was to tell the defense industry about developments and the sometimes secret changes being made to our law. Since that time, basically every claimant lawyer in the entire state has made it a point to tell us the KCB&A Update is defense-oriented and riles up HR, claims and other defense folks to look at their sometimes rising WC costs. We have spent about twenty years telling the claimant bar we understand and respect their views and still think someone in this state has to take up the side of the Illinois business and the claims/defense industry. In our view, we are still fighting the good fight and have our clients to thank for it.

In surveying 20 years of changes to the IL WC system, we note it has evolved dramatically. We remain very happy to see our Appellate Court, Workers’ Comp Division stop their prior practice of issuing secret Rule 23 decisions that we felt hid changes in the law from the folks who need to know it the most. While Rule 23 is still being used for some appellate rulings, all decisions are now published on the web for everyone to see.

In our view, without any question, the biggest and most important change to the IL WC system is reigning in rising medical costs which remain the number one cost in all U.S. workers’ comp systems. In the larger picture of all workers’ compensation systems across the globe, the challenge for the future is getting solid medical care for work-related accidental injuries at a fair price. We assure our readers the matrix has switched from employers complaining bitterly about ever-rising costs to doctors and hospital and other caregivers complaining bitterly about WC cost-cutting measures.

We expect that trend to continue. We aren’t sure where it will all end but we are certain all Americans have a relatively unrealistic goal of unlimited-on-demand medical care. We feel there are some doctors and other care-givers who are willing to feed that flame. At some future time, we are going to have to realize the unlimited-on-demand care model is unrealistically expensive. We feel Americans are going to have to sit back and measure the cost-effectiveness of medical options in both workers’ compensation and group health settings. We are also certain Americans aren’t going to be able to sue and get random but giant med-mal awards when doctors provide necessary but scientifically limited testing and care.

What are the best options to control medical costs in IL WC?? We were recently asked by a client about this situation--claimant had a finger injury and was released to one-handed work. The worker was going to a noted overtreater who wanted a CAT scan for a finger injury and took the worker off all work. The question was—what is the best or most effective way to counter that medical advice? Our recommendation was a rapid trip to an intrepid OccHealth provider with other options waiting in the wings. OccHealth is rapid, inexpensive and can be effective when properly implemented. We would love to hear your thoughts on handling that one.

As to mainstream WC medical cost controls, here are the main tools:

·         OccHealth Providers—we are telling every and all Illinois employers to get a solid OccHealth provider for all claims. While your claimants can go to their own docs, we recommend you have a “policy” requiring them to go to yours. If the worker won’t follow your policy, deny benefits until they do. You can get a worker into an OccHealth provider on basically an “any-day” basis and you should consider this a cost control mechanism to get solid care for your injured workers with an OccHealth provider to manage the claim. OccHealth providers will give you a rapid second opinion on the need for diagnostics, surgeries, time off and interim work restrictions.

·         IME’s or Independent Medical Exams—they are still out there folks. We consider them the best tool to fight casual, oops, we mean causal connection and the need for major surgeries. The problem with IME’s is the concept we call “character assassination” of IME doctors where anything the IME says is somehow “tainted” by the fact they don’t agree with claimant’s attorney and the need for never-ending care. We ask IME doctors to rely on science and national;/international studies to justify their decisions. Don’t make it your “personal opinion” on care versus the treaters—that is bound to lose. If you want our list of recommended IME providers who are solid treaters but also provide thorough and detailed opinions, send a reply.

·         UR or utilization review—this concept landed in IL WC on February 1, 2006. In our view, it is a very solid idea that should be used at the beginning of all medical care for a work-related injury and end when care ends. Basically, a UR nurse can approve care but can’t non-certify. If the nurse non-certifies proposed care, the issue moves to a general M.D. for their opinions. If the generalist M.D. non-certifies the care, it can be brought to a specialist in a UR appeal process. We feel the IWCC is strongly adhering to this concept in cutting payments and approvals for overtreatment, particularly where it relates to chiro care and physical therapy. Please note traditional UR providers can’t and won’t comment on causal connection and leave that issue to the IME doctors for final determination. Our favorite folks for this one are CID Management and GENEX who provide rapid and excellent UR results.

·         Medical Fee Schedule—this was also started as something of a pilot project in February 2006. Medical fee schedule reimbursements were greatly reduced last year and the scope of the IL WC Medical Fee Schedule has been greatly expanded to cover lots of prior gaps. At present, the medical “sticker price” charged by most medical and other healthcare givers for their care is reduced by 53% based upon our online schedule that can be viewed at: https://iwcc.ingenix.com/download.asp. In our view, Illinois business is saving millions due to this medical cost control concept.

·         PPPs or Preferred Provider Programs are about to hit and will put employers who are smart enough to enroll into a system where their employees have one ready-made choice of doctors/care-givers or their own single second choice. You can reign in care just by offering the PPProgram! We feel this is a great concept that will save Illinois business even more money in the medical side of their claims. We recommend you get more information about PPP’s from Guy Swanson at HFN, Inc. You can reach Guy or his staff at HFNAccountManagement@HFNINC.COM. For medical providers who want in on the network, feel free to email them at: HFNProviderManagement@HFNINC.COM. We expect it all to roll-out for your IL WC claims this fall or in the next quarter of 2012.

·         Nurse case managers—the most unfairly maligned of all IL WC medical cost controls are the intrepid nurses who provide telephonic or onsite management of WC medical care. They do great work and provide solid value in non-litigated claims. When cases go to lawyers, many of them are still able to provide transparent reporting to both sides. Someday, we hope there will be “rules in the knife-fight” and NCM’s will get statutory approval of their great work in litigated claims.

·         Illinois Arbitration staff—one thing our administrators do very well is to provide quiet and circumspect advice to both sides on disputes over questionable claims or surgeries. We look to our hearing officers when possible to ask them for their veteran thoughts on what to do about medical disputes. To the extent they may provide their eventual rulings on a medical difference of opinion, pretrials before the highly professional and knowledgeable Arbitrators can go a long way toward rapidly ending disagreements.

Please note there are strengths and weaknesses to each facet of cost-control outlined above. We feel our 14 defense lawyers and staff can assist all of our readers with advice on how to best optimize medical cost-savings in any claim. Please note we have Ellen Keefe-Garner, J.D., R.N. on staff who is a licensed and veteran defense lawyer and nurse in both Illinois and Michigan. She is at the top of the WC industry on what should be appropriate care in a medical-legal setting and is available to consult at any time-send a reply.

We hope the national risk managers and others who have criticized our IL WC system in the past are now starting to experience the giant savings presented by these many cost-cutting concepts. We hope you provide us any further thoughts on how to make IL WC medical care certain, fair and effective for injured workers. Please do not hesitate to post your thoughts on our award-winning blog.

7-10-12; Prevent Heat-Related Illnesses and Insure Your Outdoor Workers Wear Sun-Block, Hats and Protective Clothing

As we face the record-high smokin’ hot weather across our country, the U.S. Department of Labor's Occupational Safety and Health Administration has kicked off a national outreach initiative to educate workers and U.S. employers about the hazards of working outdoors in hot weather. The outreach effort builds on last year's successful summer campaign to raise awareness about the dangers of too much sun and heat.

Every year, thousands of workers across the country suffer from serious heat-related illnesses. If not quickly addressed, heat exhaustion can become heat stroke, which has killed - on average - more than 30 U.S. workers annually since 2003. Please remember a WC death claim in Illinois carries a minimum benefit for a widow or widower of over $600,000! Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but quickly can become heat exhaustion and then heat stroke if simple prevention steps are not followed.

We want our readers to understand it would be very difficult to defend such problems in the workers’ compensation arena in the four states in which we defend claims, Illinois, Indiana, Michigan and Wisconsin. While hot weather is a condition “common to the public,” someone who has to work in extreme conditions doesn’t have much of a problem showing they were exposed in a greater extent to that of the average citizen. We feel it essential for workers and employers to take proactive steps to stay safe in extreme heat, and become aware of symptoms of heat exhaustion before they get worse.

Please also remember the fastest growing cancer in terms of incidence and prevalence is skin cancer. Ultraviolet (UV) rays are a part of sunlight that is an invisible form of radiation. UV rays can penetrate and change the structure of skin cells. UVA is the most abundant source of solar radiation at the earth's surface and penetrates beyond the top layer of human skin. Scientists believe UVA radiation can cause damage to connective tissue and increase a person's risk for developing skin cancer. UVB rays penetrate less deeply into skin, but can still cause some forms of skin cancer. While we haven’t seen a dramatic increase in WC claims from skin cancers, it is possible that may be coming as our working population continues to age. In most states, such claims will be hard to defend. We urge risk managers to provide all of your outdoor workers sun block and intelligent clothing choices to insure their workers aren’t extensively overexposed to sunlight.

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

7-10-12; Our Federal Seventh Circuit Court of Appeals affirmed a decision which in essence has determined “seasonal affective disorder” is compensable under the Americans with Disabilities Act

In our view and with respect to the members of the Court, this decision continues a disturbing trend in which U.S. courts continue to find nearly every personal malady in some way compensable. Seasonal affective disorder (SAD), also known as winter depression, winter blues, summer depression, summer blues, or seasonal depression, is a mood disorder in which people who have normal mental health throughout most of the year experience depressive symptoms in the winter or summer, spring or autumn year after year.

In the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), SAD is not a unique mood disorder, but is a specifier of major depression. Although experts were initially skeptical, this condition is now recognized as a common mental disorder. Obviously, there are folks in Wisconsin who don’t agree with that diagnosis.

In Ekstrand v. School District of Somerset, No. 11-1949 (issued June 26, 2012), the Seventh Circuit Court of Appeals affirmed the jury’s verdict in favor of Plaintiff in an action under the Americans with Disabilities Act alleging Defendant School District failed to accommodate plaintiff-teacher’s disability by denying her request to switch to classroom that had an exterior window to alleviate Plaintiff’s symptoms of seasonal affective disorder.

The Plaintiff-teacher sued the School District of Somerset, Wisconsin alleging the district failed to accommodate her alleged SAD disability in violation of the statute. The School District moved for summary judgment, which was granted by the Federal District Court. Summary judgment was reversed by the Federal Appellate Court in part, ruling there was a triable issue of fact as whether Plaintiff was a qualified individual with a disability within the meaning of the ADA and to whether the school district was aware of the disability.

At trial, while the Defendant-school district pointed to certain evidence at trial that supported its claim Plaintiff was not a qualified individual with disability and the decision-maker was unaware of Plaintiff’s disability, the Court held the jury was free to credit contrary testimony of Plaintiff and her expert witness, who indicated Plaintiff could return to her classroom during relevant time frames, and the decision-maker was aware of her alleged disability.

The Appeals Court ruled Plaintiff had a burden at trial to show

(1) She was a qualified individual with a disability;

(2) The school district was aware of her disability; and

(3) The school district failed to reasonably accommodate that disability.

The Court held there was sufficient evidence for the jury to conclude Plaintiff did meet that burden. The evidence included her testimony versus the school superintendent and the testimony of her treating doctor.

This case illustrates yet again the importance of responding to complaints of individuals alleging the need for reasonable accommodation. In the instant matter it appears Plaintiff made numerous requests for accommodation to the principal/decision-maker directly, including a letter from her treating doctor which was virtually ignored for nearly a year. The school district tried to attack the sufficiency of the evidence presented, however; it would appear a much stronger tactic to deny the claim would have been to present expert/scientific evidence to rebut the claims. Any effort to later defend or investigate the claim was hampered by the Defendant’s failure to react to the complaints in the first place.

The Federal Appellate Courts have shown us in recent years they will lean to Plaintiffs in these types of actions. It is critically important to respond expeditiously to investigate and move forward on accommodation or other action deemed appropriate. The decision to completely ignore ADA complaints, even with questionable merit, is perilous.

James F. Egan, J.D. researched and wrote this important article. Please do not hesitate to contact Jim directly via email to jegan@keefe-law.com.