7-23-12; No Causation? No Case! The Michigan Appellate Court Affirms Dismissal of Two Workers’ Compensation Claims Based on Lack of Proof of Causation. Ellen Keefe-Garner is one of our two licensed...

Even young children know that there can be consequences that can arise from an action or a failure to act. In other words, even very young children understand an action can cause a certain outcome. In many kinds of legal cases, a causal connection or causation must be shown if Plaintiff wants his or her case to survive and avoid dismissal. However, if causation is missing from a case, the trial court has no option but to dismiss the case.

In some cases, the issue of causation is patent and obvious. For instance, if a doctor removes the wrong leg of his or her patient, a causal connection between the loss of a healthy leg and the negligence in performing an amputation surgery in an incorrect location is obvious. However, in other cases, the issue of causation is not so obvious, and it must be more carefully analyzed before a lawsuit is filed. Before filing a less obvious causation case, a plaintiff should look closely at his or her evidence to make sure he or she has the proof necessary to support the issue of causation so the case will not get dismissed.

In the case of King v City of Ann Arbor, Plaintiff, a police officer, lacked the necessary evidence to establish causation when she filed her lawsuit against the City. Plaintiff had apparently suffered two injuries in March of 2009 while working as a police officer in Ann Arbor, Michigan ("City"). The City accepted both cases as meritorious claims causing the City to pay workers’ compensation benefits to the police officer from March until September of 2009.

In September 2009, the police officer was released to full duty and workers’ compensation benefits were terminated. However, after she was released to full duty work, she wanted to receive additional compensation benefits and she requested her cases be re-opened. In February of 2010, the City sent the police officer to undergo an Independent Medical Examination to determine if the police officer had some ongoing work-related problems. After doing a physical examination, the IME physician determined the police officer’s ongoing physical problems were not work-related. Based on the IME report, the City refused to re-open the police officer’s workers’ compensation cases.

In 2010, in an unrelated case, the police officer filed a report with the Michigan Occupational Safety and Health Administration (MIOSHA) regarding a carbon monoxide alarm which had sounded in City Hall twice in April of 2010. She later suspected the City had refused to re-open her workers’ compensation cases because of her filing of this MIOSHA report.

Based on her assuming the MIOSHA report had CAUSED the city to refuse the reopening of her workers’ compensation claims, she filed a lawsuit against the City under the Whistleblowers’ Protection Act. In her Whistleblowers’ Complaint, she alleged her MIOSHA reporting had motivated the city to deny the reopening of her workers’ compensation cases.

During discovery in the police officer’s Whistleblowers’ case, it became clear the police officer had never fully analyzed the evidence she would need to establish causation before filing her case. Her lack of evidence on causation became apparent when it was revealed during the pendency of her case the police officer had NEVER reported or revealed her filing of the MIOSHA report to the city’s benefit manager, the city’s third party administrator for workers’ compensation cases or the city’s workers’ compensation insurer. In other words, the police officer had no evidence to prove anyone involved in refusing to reopen her workers’ compensation claims had any knowledge of her MIOSHA report. Without such evidence, she had no way to prove her filing of the MIOSHA report was causally connected to the City’s refusal to reopen her workers’ compensation cases. Since she lacked such evidence of causation, the court had no option except to grant summary disposition and dismiss her whistleblowers’ case.

This article was researched and written by Ellen Keefe-Garner, JD, RN, BSN. Feel free to contact Ellen at EMKeefe@keefe-law.com with any related questions or comments.

7-23-12; Hidden Costs in U.S. Workers’ Compensation: the Dark Underbelly of Average Wholesale Pricing of Pharmaceuticals—Analysis from Arik D. Hetue, J.D.

A small provision was snuck into the 2011 amendments to the Illinois Workers Compensation Act which dealt with prescriptions filled at a doctor’s office. Almost assuredly this was put into the bill thanks to some decent lobbying money expended on the part of doctors and the pharmaceutical companies. Problem is, this provision – which sounds innocuous enough, may end up costing Illinois business millions. Almost the exact same language was put into the Florida WC Act years ago and they have recently been having a major policy discussion in that state to see what can be done about it. A few recent studies by NCCI and WCRI, and a recent New York Times article are starting to turn a national spotlight on a glaringly unfair and costly practice for business.

The Amendments to the IL WC Act Governor Quinn signed into law in June 2011 had a small section dealing with prescription drugs:

Prescriptions filled and dispensed outside of a licensed pharmacy shall be subject to a fee schedule that shall not exceed the Average Wholesale Price (AWP) plus a dispensing fee of $4.18. AWP or its equivalent as registered by the National Drug Code shall be set forth for that drug on that date as published in Medispan.

If a drug is dispensed “outside a licensed pharmacy” it is being dispensed out of a doctor’s office. Sounds reasonable, right? The medical community would have you believe that it’s in the patient’s best interest to have their drugs handed to them by the doctors, as the patients are far more likely to take those drugs, instead of having to deal with the complex issue of filling a prescription! OK – fair enough, and according to this section of the IL WC Act, its only $4.18 over wholesale pricing – apparently not too bad.

Hold on to your hats folks, let’s look at what this actually means. The key wording that allows for these scams to be set up – when they do not address what the AWP is, it is left open to interpretation. Medispan, the company noted in the Illinois WC Act actually states in its own internal documents “AWP is not based on actual transactional, marketplace price data. Despite its name and its sometime use as a price index, the AWP published by [Medispan] is not an average of actual wholesale prices. It is not intended to represent, and cannot be assumed to reflect, actual transaction prices…AWP relies and is based exclusively on information reported by manufacturers.

The way this gets set up is a middleman company will help a doctor set up an office pharmacy by providing them with billing software and connecting them with suppliers who “repackage” medications for office sale. Doctors sell the drugs but they do not collect payments from insurers, but instead the middleman company pays the doctor some percentage, sometimes up to 70%, of what the doctor charges, then seeks to collect the full amount from insurers. What happens is “repackaging” – take Drug A which runs $.25 per dose, and Drug B which runs $.10 per dose, repackage them together as a new Drug C, and charge $3.50 per dose, for a 1000% markup split amongst the doctors and the middlemen.

In a recent article in the New York Times, Barry Meier and Katie Thomas noted the practice has become so profitable that private equity firms are buying stakes in the middleman businesses, and political lobbying over the issue has gone wild. As an example, in 2010, Abry Partners, a private equity firm in Boston, bought a stake in Automated HealthCare for $85 million. Automated HealthCare Solutions is a leader in physician dispensing, and has defeated repeated efforts to change what doctors can charge. Recent figures suggest they have given more than $3.3 million in political contributions either directly or through entities its principals control. “It’s all for the benefit of the injured workers”, they say. No need to concern yourself with the businesses who bear the brunt of these spiraling charges.

While this activity is affecting a lot of states, some such as California and Tennessee have already begun to legislate it away, Florida is truly a “sister state” with Illinois based on the language of their respective WC Acts – and looking at them, we can see where this is heading in Illinois. Florida’s workers’ compensation law specifies reimbursement at a drug’s average wholesale price, plus $4.18 as well – amazing they were able to come up with the same number as we did. In Florida, as a direct result of this change in its WC Act, there has been a sharp increase in the number of physician-dispensed drugs. The National Council on Compensation Insurance (NCCI), calculated in 2003, only nine percent of drugs were dispensed by doctors. NCCI says that number has now risen to more than 50 percent, making Florida the highest of 46 states. Rising profits from the sale of pharmaceuticals are shared by doctors, middlemen who help physicians start in-office pharmacies and drug distributors who repackage medications for office sale.

Surprise, surprise, the Workers Compensation Research Institute (WCRI), an independent, not-for-profit research organization based in Cambridge, MA had a press release a few days ago confirming nearly 2/3 of pharmacy payments in Illinois were paid to doctors using these in-office pharmacies. With the inclusion of the new portion of the IL WC Act in 2011, the percentage of prescriptions filled in doctor’s offices shot from 22% in 2009 to 66% in 2012. According to WCRI, the frequency and cost of physician-dispensed drugs in Illinois grew the fastest among the 23 states studied. WCRI also noted the harm that comes even from drugs not recombined - the price for the most commonly used drug, Vicodin, nearly tripled when dispensed by physicians compared to the pharmacy—an average of $1.44 per pill at the physicians’ offices versus $0.53 at the pharmacy. Of note amongst other frequently prescribed drugs, Mobic by 39 percent, and Ultram by 24 percent. WCRI noted the prices of these drugs dispensed at pharmacies stayed the same or dropped over the same period of time.

This won’t go away easy, now that the door has been opened. But it needs to be addressed, and soon – this single silly provision is going to cost Illinois business millions and millions of dollars until the loophole is shut. Our legislature and Governor need to act quickly to simply write the fee schedule back into law for all drugs dispensed as part of a workers compensation claim.

There is a meeting tomorrow on this important topic for Illinois business. We saw this on the Illinois Register and will have someone attend the meeting:

1) Rulemaking:

A) Description: The rule will be amended to specify that prescriptions filled and dispensed outside of a licensed pharmacy that have been repackaged shall be billed using the original National Drug Code. Section 8.2 if the Workers' Compensation Act provides that prescriptions filled and dispensed outside of a licensed pharmacy are to be reimbursed at the Average Wholesale Price, pus a dispensing fee of $4.18. Average Wholesale Price is determined by the National Drug Code set forth in Medispan.

B) Statutory Authority: Section 16 and Section 8.2 of the Workers' Compensation Act [820 ILCS 305/16; 820 ILCS 305/8.2].

C) Scheduled meeting/hearing dates: The Workers' Compensation Commission and the Medical Fee Advisory Board will discuss this rule at their meetings on July 24, 2012 to be held at Illinois Workers' Compensation Commission

This article was researched and written be Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com.

7-23-12; Mitchell Ruling/Denial not a Surprise and Everyone’s Happy It’s Over

Matt Mitchell is a former Illinois state trooper. On November 23, 2007, he was on duty and called to the scene of an accident. About ten minutes later, he was called again and told there was no longer an emergency and to stand down/slow down as help had already arrived. For reasons we hope he regrets for the rest of his life, he didn’t slow down. While bombing along Interstate 64 at over 120 MPH, he also was chatting with his girlfriend and sending text messages. The road was somewhat clogged with Thanksgiving holiday travelers.

The distracted trooper crossed over the median at high speed and hit a car head on. Two young sisters, Kelli and Jessica Uhl, were killed instantly. Two other occupants of the car were seriously injured. Trooper Mitchell suffered severe leg injuries including subsequent surgeries.

Mitchell was given an amazing break despite his unconscionable decisions--he pleaded guilty to reckless homicide and reckless driving and was sentenced to 30 months’ probation. He got no jail time despite killing the two young girls. Former trooper Mitchell did lose his job; he resigned his position with the Illinois State Police and later moved to New Jersey.

Former Trooper Mitchell then filed a claim for Illinois workers comp benefits. When your editor first heard of this story, we were stunned to learn three claimant lawyers were contacted and all of them opined WC benefits were likely to be awarded. These lawyers pointed to the stipulation during a civil suit filed by the parents of the Uhl sisters, the Illinois attorney general agreed, despite the unquestioned criminal negligence, Mitchell was acting in his capacity as a state trooper when the accident occurred. Here is what we wrote about it in 2010:

We are even more shocked to read the discouraging article in the Belleville News-Democrat© that interviewed and quoted three Petitioner-Plaintiff attorneys who all confirmed their view that criminally reckless behavior killing two children and severely injuring two more wouldn’t bar workers’ compensation benefits. The article contains a picture of one of the beautiful girls tragically killed. To the extent these Petitioner-Plaintiff attorneys commented, analyzed and effectively “decided” their skewed view on the issue of compensability of pending litigation, we completely disagree and consider their opinions to be misguided and embarrassing to all Illinois lawyers, hearing officers and judges/justices. We feel claimants who admit they committed crimes and recklessly endangered or killed innocent men, women and children should not be rewarded and receive Illinois’ generous WC benefits. We don’t consider it to be difficult for our Commission and reviewing courts to implement the concept—they just have to have the drive and will to do so.

 Your editor feels the opinions of those lawyers and stipulation by AG Madigan’s office will always remain one of the dumbest and most infuriating things I have ever read in my entire legal career. There is no question whatsoever former Trooper Mitchell was “in the course of” his employment for our state. He was in a state uniform and using state equipment.

There is similarly no possibility, none, that he remained “in the scope of” his tasks as a state trooper. This state does not pay our sworn peace officers to drive at wildly high speeds for no reason. We also hopefully do not train or instruct our state troopers to text and talk to girlfriends when joyriding while on duty and endanger the lives of innocent men, women and children. Without meaning to minimize the devastating loss of the parents of the Uhl children, I always think of how this tragedy could have been similar to the recent shootings in Colorado if former Trooper Mitchell had struck a school bus full of children or lost control and blindly ran his patrol car into a busy hospital or church/synagogue.

Please note there is a stupid legal theory by which this craziness might have been arguably compensable—if one were to find Mitchell a “traveling employee” global WC coverage might attach to all his actions, whether negligent, reckless or intentional. This is another reason we feel the impossible-to-contemplate concept of “traveling employee” that our legislature has never defined has to be reined in completely until it makes some sort of common sense. Whatever the heck “traveling” might be defined as cannot equate with global coverage of all actions.

Please also note Illinois taxpayers faced an interesting “double jeopardy” from these facts. We, as taxpayers, were on the hook for the deaths of the Uhl sisters and the injuries to other passengers—the family of the Uhl girls and passengers received $8.7M from this trooper’s failures. We have a client who lost a beautiful daughter around the same time to a hit-and-run driver and we assure our readers no mother in this situation wants a dime—they would trade all that money an instant to get their loving child back. Heaped on top of that money in the “People’s Republic of Illinois,” if this hubbub hadn’t followed, Mr. Mitchell almost certainly would have received 30%, 40% or as much as 75% loss of use of the “person as a whole” for the blurring and extra-legislative concept of “loss of trade.” This is another troubling administrative WC concept our legislature has never defined; we feel someone has to get their arms around what the heck that might actually be in our state—there is no defined legislative or other standard to give someone 5% BAW versus 500% BAW for “loss of trade.” The only limiting factor is the imaginations of our hearing officers.

In defending claims for municipalities and other government bodies, we assure our readers when an Illinois police officer or a firefighter suffers injuries that preclude them from working in their former official positions, they get pension benefits that may cut off their right to Illinois’ two highest benefits—wage loss differential and “odd lot” total and permanent disability. To insure no injury to a police officer or firefighter comes without a wild cost to taxpayers, someone in the collective genius of ITLA and the claimant bar cooked up the “loss of trade” concept and everyone continues to struggle with what is “fair” despite the fact the claimant gets their taxpayer-supported pension for life with personal health care insurance paid for and can still work in other jobs without any setoff.

Other interesting aspects of the Mitchell claim include:

·         Former Arbitrator Teague sparked a federal investigation and brouhaha when someone reported she was trying to set the initial hearing on the Mitchell claim on a quiet day to avoid the press and possibly award him benefits; she later set it for a proper hearing and zeroed the claim. She also got into other issues with ex parte communications and trying to advance her own WC settlement reportedly outside the silly delaying rules the State uses for its WC settlements. She and other Arbitrators also reportedly got “face value” tix to concerts and ballgames to later supposedly reimburse the prominent claimant attorney who gave them to her. She has since resigned, changed her name and moved on to pursuits outside WC litigation. We still wonder when/if anyone is going to report or sanction the claimant attorney who admittedly was giving things of value to hearing officers he was appearing in front of.

·     The Illinois legislature enacted HB 1147 that made this claim noncompensable—our law now says an injured worker can’t get benefits when injured during a forcible felony like this one. We are pretty sure that new law made this ruling arguably unnecessary.

Finally, the Illinois Workers’ Compensation Commission, including all nine of our Commissioners and the Chairman participated in the en banc oral argument and ruling that ended IWCC claim number 10 WC 35184 titled Matthew Mitchell v. Illinois State Police. On July 6, 2012, they affirmed the ruling of the Arbitrator which denied all benefits. We assure our readers such a ruling, by Illinois law, is final and unappealable.

While we feel their ruling was mostly a public relations effort, sometimes good public relations is a solid idea. We salute our administrators for getting together as a team to let the entire Illinois WC community and the world know they would not sign off on this preposterous claim by this admitted felon. We hope their message goes out to future claimants, if you do something dangerous and recklessly injure innocent people, don’t come to them for the decent benefits they award to other injured workers. And while none of this will assuage the grief, pain and sadness of the parents of the beautiful Uhl daughters, we are happy this chapter in Illinois workers’ compensation history is now forever closed.

Pictures of Kelli and Jessica Uhl are posted on the web at:

http://www.google.com/search?q=kelli+and+jessica+uhl&hl=en&prmd=imvnso&tbm=isch&tbo=u&source=univ&sa=X&ei=bDkMUJWmNMq3rQH4uOnMCg&sqi=2&ved=0CFUQsAQ&biw=1069&bih=776

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