1-23-13; The Least An Adjuster/Attorney/Arbitrator Needs to Know about Medical Stuff in IL WC; Shawn Biery's IL WC Rate Sheet Updated; New WC Reforms from Dwight Kay and much more

Synopsis: The Least IL WC Claims Adjusters/Attorneys/Arbitrators Need to Know About Common Medical Conditions in the WC Arena.

 

Editor’s comment: Here are our thoughts and information from your editor and his fellow lawyer and sister, Ellen Keefe-Garner who is a brilliant trial lawyer and also a registered nurse in IL and MI. We tell our law students to always refer towww.wikipedia.org or www.youtube.com for simple follow-up information/research to what we are providing below.

 

Head: The main IL workers’ comp concerns in relation to head injuries are skull or facial bone fractures. For a diagnosed fracture of a non-facial skull bone, there is a minimum of six weeks of PPD due. For a fracture of most facial bones, there is a 2-week minimum. It would be a rare Illinois WC claim where the minimum statutory weekly value would be all that an injured worker would be awarded for a skull fracture.

 

In dealing with instances of severe closed head/brain trauma, we recommend adjusters/attorneys/arbitrators consider getting the injured worker to either the Rehabilitation Institute of Chicago www.ric.org or QLI Omaha www.qliomaha.com for short or long-term care. Both institutions are amazing and at the top of the field in this part of our planet.

 

Neck/Back/Spine: The neck is the top of our spinal column which is the primarily bony structure that protects our spinal cord. The spinal cord is our bodies’ information/electric superhighway. The four spinal “sections” are called cervical, thoracic, lumbar and sacral. The human spinal column is made up of 33 bones - 7 vertebrae in the cervical region or C1-7, 12 in the thoracic region or T1-12, 5 (usually) in the lumbar region or L-1-5, 5 in the sacral region or S1-5 and 4 in the coccygeal region that are fused into one bone for adults.

 

The bones are separated by “intervertebral discs” or tough, fibrous material that our bodies use to keep the bones from touching/grinding on each other. The problem we face is overstressing or traumatizing an intervertebral disc may cause it to bulge or rupture and put pressure on the nerves that swing in and out of this superstructure. When they bulge, the docs usually give patients anti-inflammatories and painkillers to keep us from whining too much. When the discs rupture, spine docs will sometimes treat them with drugs but more often may go into our bodies and clean out the disc material, as it will compress your nerves. They may “fuse” the spine where the disc ruptured by taking bone from other parts of your body, usually your hip and grafting it into place where the disc used to be. This fusion procedure may include hardware, such as plates and screws to stabilize the newly placed bone grafts.

 

For adjusters/attorneys/arbitrators, the important or “most-seen” sections are the cervical and the lumbar spine. Those are the action areas of our bodies—if you suffer “whiplash” or otherwise injury your cervical spine the joint most commonly affected and operated on is C6-7. For lumbar injuries, the joint most commonly problematic is the L5-S1 which is the arched fulcrum upon which the spinal column rests.

 

Past IL WC PPD awards for bulging discs range from 0-15% LOU of the BAW or body as a whole. Spinal surgeries that aren’t fusions, like a laminectomy/discectomy traditionally resulted in PPD awards in a range from 12.5%-25% LOU of the BAW. Fusions are considered complex surgeries with an expectation of permanent restrictions. The IL WC awards for fusion surgeries run from 20-35% BAW. All of the traditional values may be impacted by implementation of impairment ratings for IL WC claims occurring on and after September 1, 2011.

 

Shoulder: The shoulder is your arm’s “universal joint” with lots of range of motion in lots of directions. The shoulder is a ball and socket joint held into place with a tough membrane called our “rotator cuff.” The rotator cuff is a group of four tendons that stabilize and basically comprise the shoulder joint. Each of these tendons attaches to a muscle that moves the shoulder and the biggest arm bone, your humerus in a specific direction. Rotator cuffs can tear—when that happens, doctors will go back in an clean out the debris and sew the tear up. This can leave an injured worker with less range of motion and sometimes limited strength, particularly above the waist. There are several different versions of surgical shoulder repairs—most of the time, they will result in traditional values at about 5-15% BAW. Remember, in the Forest Preserve District of Will County ruling, after about 100 years of the shoulder being awarded PPD benefits based upon LOU of the arm, our resolute Appellate Court, Workers’ Compensation Division found a dictionary and then magically changed valuation for an Illinois injured worker’s shoulder problems to compensation for loss of use of body as a whole.

 

Elbow: The elbow is the simple joint in the middle of your arm. The most common WC elbow surgery is cubital tunnel repair or “cleaning” we consider to be more common in our state than any other place on the globe.

 

Wrist: The wrist is the joint between your forearm and hand. For reasons lost in time and IL workers’ comp tradition, injuries to the wrist are usually compensated as LOU of the hand and not the arm; despite the fact most wrist injuries involve arm bones or tissue. You may occasionally see a condition called a ganglion cyst—these are almost never traumatic or work-related in origin.

 

Hip: Like the shoulder, this is your leg’s universal joint. It is also a ball and socket joint with a tough, fibrous membrane that holds the biggest bone in your body, your femur in place. We don’t see as many hip tears as we see rotator cuff tears in the shoulder. We are starting to see more and more hip arthroplasties or hip replacement surgeries. In such a procedure, the surgeons enter, cut out the bones above and below the joint and put in a plastic/metal thing that takes over the place of your creaky old bones. We have seen awards in the range of 40-60% LOU leg for such work.

 

Knee: The knee is an oft-abused but simpler joint between your femur and your tibia bone that is in the bottom of your leg. Basically there is a very limited range of motion—this joint is a limited hinge. The most common surgical issues are menisectomies and ACL repairs. The meniscus is tissue that goes across the knee and is designed to keep your femur and tibial plateau from coming into bone-on-bone contact. Orthopedic surgeons for decades have been trimming out damaged and cut tissue which leaves a small area of such bone-on-bone grinding. If they take enough out, you may eventually need knee arthroplasty or joint replacement surgery. Traditional menisectomy PPD awards were 12.5% to 25% LOU of the leg. Like hip arthroplasties, knee joint replacement is also 40-60% LOU leg.

 

Your ACL is a ligamentous membrane that is in a “cross” or x-configuration and keeps your knee in line. If that is ruptured, docs need to harvest similar tissue from somewhere else in your body and reattach it. The values for such complex surgeries are from 20-35% LOU leg.

 

Ankle: The ankle is the joint between your lower leg and foot. The most common injuries are ATF or ankle ruptures. Like wrist injuries, these are treated as LOU foot and not leg.

 

AMPUTATION LOSSES:

 

·         Amputation = bone loss.

·         Always pay on statutory losses immediately or the minute you are aware of the extent of bone loss.

·         Failure to pay exposes employer to 50% penalties and 20% fees—why wait?

·         Attorneys’ fees capped at $100 for accepted statutory loss that you pay—amputation, skull/vertebral fracture

·         Illinois has very high minimum and maximum amputation rates—check Shawn Biery’s current rate chart

 

IL WC PPD RULES OF THUMB:

 

·         Simple fracture/simple surgery traditionally utilized an informal 15-25% rule;

·         Simple strains w/o fracture or surgery shouldn’t rise to 15%;

·         For injuries involving more than simple fractures/surgery, go to www.qdex.com or call/email KCB&A;

·         PLEASE NOTE physician’s AMA disability ratings “shall be” considered by the IWCC for injuries after September 1, 2011. If you don’t bring a rating, they can’t consider it!

 

We appreciate your thoughts and comments. If you want our KCB&A Rules of Thumb, send a reply. If you want our list of recommended vendors/experts, send a reply.

 

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Synopsis: Illinois WC Rates Jump Again and Your PPD Reserves Need Retroactive Updating. Send a Reply to Get a Free Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet!

 

Editor’s comment: We remain chagrined to continue to watch the endless spiral of IL WC rates. Starting in the 1980’s, the IL WC Act provides a formula that effectively insures no matter how poor the IL economy is doing, our WC rates keep climbing.

 

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is now $712.55. When it was published, this rate changed retroactively from July 1, 2012 to present. If you reserved a claim based on the prior rate for the period from July 1 to right now, your reserves are wrong. If you have a claim with a date of loss after July 2012 and a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. If this isn’t clear, send a reply.

 

The current TTD weekly maximum is $1,320.03. A worker has to make over $1,980.04 per week or $102,962.34 per year to hit the new IL WC maximum TTD rate. Do such folks truly need full TTD value? Does any state in the United States have a TTD maximum that high?

 

The new IL WC minimum death benefit is 25 years of compensation or $495.01 per week x 52 weeks in a year x 25 years or$643,513.00! The new maximum IL WC death benefit is $1,320.03 times 52 weeks times 25 years or a lofty $1,716,039.00 plus burial benefits of $8K.

 

The best way to make sense of all of this is to get Shawn Biery’s awesome and easy-to-understand IL WC Rate Sheet. If you want it, simply reply and we will send it along.

 

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Synopsis: New IL WC Reform Legislation proposed by Dwight Kay, R-112th Dist.

 

Editor’s comment: While we don’t think they will pass, here are new bills/reform legislation our plucky, pro-business rep has floated out there in Springfield. The comments are the opinions of your editor and don’t reflect Mr. Kay’s thoughts.

 

HB0114—At present, a ruling on a IL WC claim by state workers ends at the IWCC. This creates the weird situation in which a WC claim by a state worker goes before other state workers--the IL Arbitrator and Commission panel. Many folks feel it has a less-than-objective perspective. The same situation was present when IWCC Arbitrators were having their personal WC claims handled by other IWCC Arbitrators. The 2011 Amendments created “independent” arbitrators to hear such claims.

 

The IL State agency that currently manages WC claims, Central Management Services has crabbed about being limited to hearings/appeals only at the IWCC for years and they wanted what they felt were poor rulings from the IWCC to be appealable to the local circuit courts, so the matter would be brought to someone outside the IWCC. This legislation would then stop the appeal at the Circuit Court level so claims would not then move to further appeals before the liberal and pro-labor IL Appellate Court, Workers’ Comp Division.

 

HB0115—Medical bills and TTD for state workers would be charged to the budgets of their respective state agency. We thought this was already enacted in recent Senate bill. We feel any T&P benefits paid to a state worker due to the respective state agencies’ almost criminal refusal to accommodate them, creating the fantasy of an “odd-lot” total and permanent claim for hundreds of state workers, should also be charged to the respective agencies.

 

Someday, we hope the media or the Governor or someone in the federal government should investigate and stop the “odd-lot” thing for all state workers. Every single one of them are, by definition, ghost-payrollers. If you don’t understand why this is a secret WC scandal in our state, send a reply.

 

HB0107—This is the “major contributing cause” requirement. The same bill was floated out in the legislature last April and didn’t get much traction.

 

HB0109—This language would require a signed, written, verified report of injury within 45 days of onset. That language would be a very sweeping change to WC law and practice in IL. The language would potentially reverse the Durand ruling where a woman knew of a condition and didn’t report it for four years. In Durand, the IL Supreme Court said they couldn’t “punish” her for failing to report a known condition while “working in pain” for the four-year period. We have always wondered what “punish” has to do with following the very clear rules and why our highest court didn’t feel they were “punishing” the employer by making them pay benefits not due.

 

HB0112—This language would limit CTS claims to impairment ratings only if the worker went back to regular work. In large part, we feel such legislation would completely eviscerate any CTS claim because the impairment ratings for CTS are almost always zero. Try to imagine a state where the “tunnels of Illinois” were closed in the WC arena and the number of CTS claims would again mirror the rest of the country. Another concern is the same concept should apply to cubital tunnel syndrome.

 

HB0113—This legislation mildly changes the intoxication defense so the employee has to show intoxication was not the proximate cause of the injury where the Act currently says either sole proximate cause or just proximate cause. We are not sure how this would truly modify what we are dealing with in the battle over the intoxication defense.

 

HB0111—This proposed law would effectively create a “limit” on body as a whole awards of 500 weeks. Business reps have wanted “credit” for prior BAW awards so if someone got 30% BAW, they would have to show 50% loss to be entitled to a 20% recovery. From our view, this legislation doesn’t take that approach—it simply caps all lifetime BAW awards at 500 weeks. We feel common sense should make this law unnecessary; Duh??--how can the IWCC find someone to be 145% disabled while they are on the same planet? The problem Rep. Kay is addressing is the sometimes missing “common sense” thing in this WC system.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.

1-15-13; IL Law Refresher on Two-Party Consent in Recordings; SMART Act and Impact on You; Bumping Boats Don't Bring Maritime Liability; IL Sup. Court Limits Venue in Asbestos Claims and more

Synopsis: Refresher on IL Law about Two-Party Consent to Smart-Phone Recordings in Illinois. Is there a double standard from the Petitioner bar? Analysis by Shawn R. Biery, J.D., MSCC

 

Editor’s comment: We recently had an inquiry regarding a Petitioner, at the request of his counsel apparently, surreptitiously recording the interaction and discussions during an IME exam. It is unclear to the writer if the M.D. didn’t put 2 and 2 together until after the exam as he did not object and there was clearly no discussion of the recording of the exam by Petitioner before or during the exam.

 

We have had numerous discussions with opposing attorneys over the years regarding obtaining recorded statements from claimants as part of the initial or follow-up accident investigation. The majority of the members of the Plaintiff/Petitioner bar in IL WC advise their clients to avoid voluntarily providing recorded statements, even if counsel is on the call or recording. For our readers and claims handlers from other states, we have no Rule or portion of our IL WC Act that can “force” a claimant to provide a written or recorded statement, even if they have counsel present on the recording. It is one of the factors leading to what we call “trial by ambush” in our IL WC system—we don’t truly know what a claimant is going to say until they testify under oath.

 

While we understand and share an overall general dislike of being recorded, there have been multiple occasions where a simple and relatively brief recorded statement, as part of an accident investigation, would have cleared up numerous questions regarding the claim. In some instances, a refusal to participate in a recorded statement appeared in this writer’s view to be nothing except a refusal to be held to one version of events regarding a claim. Arguably the refusal to allow complete investigation should justify a subsequent refusal to issue WC benefits if questions regarding the claim cannot be answered alternatively. In our view, a claimant should participate in a short and simple records with their counsel on the agreed call/recording to “protect” them if they were to stray too far afield. Everyone should then receive a copy of the recording.

There was also the question of legality and as a refresher to the M.D. performing the IME referenced above and our readers, a reminder serves to confirm Illinois is a two-party-consent state to recordings so Illinois makes it a crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties to the conversationThe law defines an "eavesdropping device" as "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." 720 Ill. Comp. Stat. 5/14-1, -2. In our view, cell/smart phones are included. In addition to subjecting you to criminal prosecution, violating the Illinois wiretapping statute can expose you to a civil lawsuit for damages by an injured party.

You may have noticed recent articles in the news regarding recording public activities and this article is not purported to cover general public activities as you generally are permitted to photograph or record video of people without permission in most public places as part of an overall right to take photos or videos/recordings with sound in public places. Any attorney who suggests their client record a private meeting should make sure their advice follows the prevailing state law and confirms the need for consent.

A simple reading of Section 12 of the WC Act provides no guidance on recording an IME exam so it is simply based upon the agreement of the parties—we would argue an individual who refuses to consent to an IME if the physician performing it does not agree to recording is subjecting themselves to denial of the right to ongoing WC benefits due to the refusal to reasonably submit to the exam as stated under Section 12 of the Act. How our IWCC might rule on the issue is anyone’s guess but isn’t worth the time and delay needed to fight. On the other side, we could foresee doctors wanting to protect themselves if claimants all start routinely doing this—the IME doc might want to start recording the IME also as protection against an edited version of the exam.

This article was researched and written by Shawn R. Biery J.D., MSCC and you can contact him directly with any questions at sbiery@keefe-law.com.

 

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Synopsis: MEDICARE UPDATE: President Obama Signs SMART Act into Law. More analysis from Shawn R. Biery, J.D., MSCC.

 

Editor’s comment: As we reported recently, provisions from the SMART Act were added to other legislation and passed both the House of Representatives and Senate as the legislative sessions were ending. On January 10th, 2013, the legislation was signed and becomes law. In a press release, the White House Press Office indicated the new law in part amends certain rules under which Medicare is a secondary payer to specified third-party payers. While the law being signed is only the start as it will require the drafting of Federal Regulations and some Administrative Procedures in order for it to take effect, it will now be created to clarify specifics, in general we should have some additional certainty in handling for some areas of concern including with:

 

  • New Conditional Payment Process
    • Creates a New Conditional Payment Resolution Process which requires Notice to the Secretary of Health and Human Services advising the Secretary of a potential Settlement, Judgment, or Award. The claimant or applicable plan may, at any time beginning 120 days before the reasonably expected date of a settlement, judgment, award, or other payment, notify the Secretary of HHS that a settlement is reasonably expected and the expected date of that settlement.
    • The Secretary of HHS will allow access to information on the items and services provided by Medicare to interested individuals, authorized family, representatives, and to applicable plans through a website which requires a password to gain access.
    • By obtaining a statement of reimbursement amount from the website during the protected period (a period of 65 days, except that such period may be extended by the Secretary for an additional 30 days if the Secretary determines that additional time is required to address claims for which payment has been made), as long as the related settlement, judgment, award or other payment is made during such period, then that last statement of reimbursement amount which is downloaded during such period shall constitute the final conditional amount subject to recovery.
      • If there is a disagreement as to the amount of a conditional payment requested, the individual, representative, or plan must provide documentation explaining the discrepancy and a proposal to resolve the discrepancy and the Secretary must then act within 11 business days. Otherwise the initial proposal must be accepted. The Secretary shall determine whether there is a "reasonable basis" to include or remove claims on the statement of reimbursement.
      • Secretary must also promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal such a determination. The individual furnished such an item or service shall be notified of the plan's intent to appeal such determination.

 

  • There will be a Threshold for Exemption from Conditional Payment Reimbursement
    • An annual single threshold amount for a given year shall be set by the Agency. This amount shall equal the estimated cost of collection incurred by the United States (including payments made to contractors) for a conditional payment arising from liability insurance (including self-insurance). Conditional payment amounts below the threshold will not be pursued by Medicare.
    • Reimbursement of conditional payments and mandatory reporting shall not apply with respect to any settlement, judgment, award, or other payment by an applicable plan arising from liability insurance (including self-insurance) and from alleged physical trauma-based incidents (excluding alleged ingestion, implantation, or exposure cases) constituting a total payment obligation to a claimant of not more than the single threshold amount calculated by the Secretary for the year involved.

 

  • Mandatory Insurer Reporting Fines and Penalties
    • The Bill replaces Mandatory Insurer Reporting penalties language requiring fines and penalties for non-compliance with a discretionary standard. Thus insurers and reporting entities ”may" be subject to a civil money penalty of up to $1,000 for each day of noncompliance with respect to each claimant.
    • The HHS Secretary must publish a notice in the Federal Register soliciting proposals for the specification of practices for which sanctions will and will not be imposed, including not imposing sanctions for good faith efforts to identify a beneficiary under an applicable entity responsible for reporting information.

 

  • Three Year Statute of Limitations to File Claim for Reimbursement
    • Instead of the current unknown, now there will be definable Statute of Limitations to the Medicare Secondary Payer Act and an action may not be brought by the United States with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment made.

 

This new legislation will at the very least give some stated guidelines with regard to Conditional Payments and I would argue from the legislative discussions regarding the implementation of the changes, the fact that the Federal Government is agreeing there is some sanity in having statutes of limitations, this may be the first step in bringing sanity to closure of cases with very limited arguable future medical and hopefully the fight continues to gain some additional sense in the need for full MSAs on claims where prospective medical care may be years if not decades away and the six-figure MSA proposals create an enormous barrier to final settlements.

 

This article was researched and written by Shawn R. Biery JD, MSCC and you can contact him directly with any questions at sbiery@keefe-law.com.

 

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Synopsis: Dangling Foot Didn’t Bring General Maritime Liability for Bumping Barge/Boat Owners. Research and review from James F. Egan, J.D.

 

Editor’s comment: In a Rule 23 decision in Ballard v American Commercial Lines, Inc., et al,  our Appellate Court affirmed no duty of care was owed to longshoremen when injured from routine bumping barges and boats under general maritime law.

 

Plaintiff Ballard was employed by R & G Maintenance and Welding Services, Inc. Among Ballard's job duties was to inspect the hulls and decks of barges for cracks or holes, patching and welding them as needed. On the date of injury he suffered injuries while repairing a docked barge. Plaintiff Ballard was lying on his stomach on top of a walkway area with his head, right shoulder, right arm and foot, hanging over the side of the barge while welding. His right foot was crushed when the stern of the barge he was repairing came into contact with the bow of another barge when moving water caused the barges to shift position.

 

Plaintiff filed a complaint seeking damages for the injuries he allegedly suffered, alleging Defendants were negligent under Illinois common law and under the Longshore Harbor Workers’ Compensation Act (LHWCA). Plaintiff also named the owner of the barge he was working on American Commercial Barge Lines, Inc.; the owner of the tugboat which disturbed the water, Louisiana Dock Company, LLC and its crew; Louisiana Dock Company in its capacity as the owner of the dock and American Commercial Lines, LLC, claiming each of the defendants were negligent for various reasons.

 

Defendants filed a motion for summary judgment, arguing they owed no duty of care to Ballard under the LHWCA or under general maritime law. The trial court granted defendants' motion for summary judgment, finding the defendants did not participate in the repair operations, nor did they control the repair operations and that Ballard had failed to identify the defendants' duty under the LHWCA or general maritime law. Also, the defendants did not supervise Ballard, his employer R & G, or the repair work being performed. Evidence revealed Ballard was injured because he was acting in an unsafe matter and R & G was an independent contractor which was therefor was responsible for Ballard’s supervision.

 

Ballard’s motion for reconsideration was denied and Ballard appealed the court’s judgment. In his notice of appeal, Ballard stated he was appealing from the trial court's order granting summary judgment for Defendants in count I, the general maritime law. Ballard affirmed he waived any claims against Defendants under the LHWCA, because the Act is a longshoreman's exclusive remedy for negligence claims against a vessel. While Ballard acknowledged the exclusive remedy provisions of the Act precluded an action against the barge owner under the general maritime law, he alleged he may bring a general maritime action against the towboat and its owners because he was not working on the towboat when he was injured and the statute contemplates the exclusive remedy provisions apply only to vessels a longshoreman was working on.

 

The Appellate Court found, however; Ballard did not cite any authority in support of his claim and found the exclusive remedy provisions of the Act applied equally to the towboat involved in the incident, as well as the barge, citing Bongiovanni v. Howlett as well as Section 905(b) of the Act. Since the towboat was a vessel connected to the injuries suffered by Ballard, the Appellate Court held the LHWCA was the exclusive remedy provided by Congress for Ballard's claims against the owner of the towboat and the towboat personnel. As a result, the Appellate Court concluded it did not have jurisdiction for claims against the owner of the towboat, or jurisdiction over the towboat crew under the general maritime law and the trial court's judgment for defendants must be affirmed.

 

Plaintiff did not appeal from that judgment and therefore forfeited any claims against the owners of the barge and their employees, any claims against owner of the towboat, as well as the towboat crew. The Appellate Court further found Ballard had failed to present any evidence that towboat owner or its employee had a duty to moor the barges or monitor mooring lines in a manner to avoid them from bumping during repair operations. Instead, the record showed barges at the dock regularly come in contact with one another. Based on de novo review of the record, the appellate court held Ballard had failed to establish the dock owner or its employee had a duty to monitor mooring lines during repair operations to prevent barges from bumping into each other. The judgment of the trial court was affirmed in all respects under the general maritime law, holding Defendants did not owe a duty of care to an injured longshoreman to monitor mooring lines during repair operations.

 

This article was researched and written by James F. Egan, J.D. Please feel free to contact our maritime defense specialist at jegan@keefe-law.com.

 

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Synopsis: Will Illinois Courts Stop Pulling in Claims from All Over the World? Analysis by Sean C. Brogan, J.D.

 

Editor’s Comment: From what we can tell, the Illinois civil justice system keeps lots of law firms from all over the U.S. busy working here. We don’t feel that is a good thing for any number of reasons, the first of which is the highly political atmosphere present when these state judges run for office and get lots of donations from folks who have nothing to do with our state other than to win favor in court. If you were to Google®-search the Madison County Asbestos Docket right now, you would find that county has several thousand asbestos claims currently pending each month. If all those claims were to be tried during a single year, every adult in the county would sit on several jury panels.

 

In a 2010 report, the U.S. Chamber’s Institute for Legal Reform started its study of this county’s courts by noting:

 

The Madison County asbestos litigation story involves the creation of a national clearinghouse for asbestos malignancy claims by first suspending normal rules about which courts should hear these cases, and second, by adopting procedures to facilitate the “processing” of large numbers of those claims. These factors combine to facilitate the process of extracting maximum value from the defendants. The resulting economics, in turn, drive a litigation perpetual motion machine where, so long as the rules are relaxed, more and more cases will be drawn to the jurisdiction. Whether Madison County asbestos litigation will continue along its current course is an unwritten chapter; but, as it stands now, the story is a cautionary tale about the power of procedural “innovations,” the ability of a judge or judges in one location to impact the entire national system of litigation, the extreme mobility of asbestos claims and the tyranny of economic incentives.

 

For the first time, we have seen our Illinois Supreme Court take action to enforce traditional venue rules and make Plaintiffs bring their claims where they arose. In Walter Fennell v. Illinois Central Railroad Company, No. 113812, issued December 28, 2012 various plaintiffs sought recovery for injuries they allegedly sustained as a result of alleged exposure to asbestos while employed by a railroad company. They filed suit in Mississippi and the matter was dismissed without prejudice. Several years later, Plaintiffs filed suit yet again but this time in the Circuit Court of St. Clair County, Illinois—please note St. Clair County is right next door to Madison County, IL. Via interrogatory, Plaintiff was asked to identify the specific locations where he was exposed to asbestos to which he replied “Plaintiff was mostly in and out of Jackson, Mississippi to Gulfport, Louisiana and McComb Mississippi.” Defendant filed for dismissal contending Mississippi and not Illinois was the most convenient forum to try the case. The St. Clair Circuit Court denied the motion and Defendant appealed.

 

The Court noted jurisdiction was proper in both Mississippi and Illinois pursuant to the Federal Employer's Liability Act as it was undisputed Defendant did business in both states. However, the Court invoked the doctrine of forum non conveniens, and held the Circuit Court of St. Clair County abused its discretion in denying Defendant's motion to dismiss.  

 

The doctrine allows a court to decline jurisdiction over the subject matter and the parties if it appears another forum can better serve the convenience of the parties and the ends of justice. The Court analyzed several private and public interest factors noting the following: Plaintiff resided in Mississippi; the alleged exposure occurred in Mississippi; the vast majority of identified witnesses were located in Mississippi and the residents of Mississippi would have a greater interest in having the matter resolved in their state.

 

Ultimately, the balance of factors favored dismissal in favor of a Mississippi forum. We hope to see more such rulings and perhaps Madison County can go back to being a venue for claims that arise in that area and not an arena to decide claims from across the country.

 

This article was researched and written by Sean C. Brogan, J.D. He can be reached for questions or comments at sbrogan@keefe-law.com.

1-7-13; DOI "Offshoring" Prohibition for UR/TPAs Won't Affect IL WC; Cook County is a Model for IL Gov't WC Programs; Appellate Court "Dents" An IL Employer For More WC Care and much more

Synopsis: The IL Dep’t of Insurance Issued Confusing and Unprecedented Memo Threatened to End Out-of-State UR and TPA’s;Then…

 

Editor’s comment: You have to love this nutty State. A source sent us a December 20, 2012 edict issued by Andrew Boron, Director of the IL Department of Insurance. It appears to indicate you can’t conduct utilization review or UR or run a third party administrator or TPA outside our state boundaries. That would be a seminal change in the IL WC system. When we received it, we started our research and also sent it to a number of confidential contacts for their thoughts.

 

From what we could tell in a simple reading, the Director of the IL Department of Insurance was suddenly requiring all TPA’s and UR providers to move their offices/operations into Illinois or be barred from doing business here. This unusual Memo can be reviewed on the IWCC website’s News section:

 

Dept of Insurance issues UR memo

The Department of Insurance has issued a memo on utilization review services. To read it, go to http://www.iwcc.il.gov/CB2012-12.pdf

 

To clarify, the memo speaks to both UR and TPA services and their licensure. We did diligent research and reviewed the statutes listed in the memo. As veteran defense lawyers, we don’t agree at all with Director Boron’s legal position on what the Managed Care Reform and Patient Rights Act says and how the IL DOI now appears to want to enforce it. That said, for a number of reasons, we don’t want UR and TPA’s to be “offshored” or situated in foreign countries. On the opposite side of the same debate, we don’t think of UR’s or TPA’s in Indiana, Tennessee or California to be “offshored” work. One also has to wonder about what the IL DOI will do if you have an Illinois office with UR reviewers or claims adjusters “remoting in” from across the U.S.

 

We then sent an email inquiry to IL DOI Director Boron and asked for the specific language in the Managed Care Reform and Patient Rights Act to which he referred. We are confident our various sources/contacts also sent similar inquiries. At the time you read this article, we assure our readers he hasn’t officially replied directly to our inquiry. The whole thing was then reported to the entire country inwww.workcompcentral.com and their intrepid Central Bureau Chief, Bill Kidd. He quoted your editor on our thoughts and he also quoted one of the top Plaintiff/Petitioner attorneys in IL WC, David Menchetti who indicated he felt UR providers should practice in the state where they are performing reviews. Mr. Menchetti was quoted as comparing UR and medicine in Indiana to India—with respect to this solid lawyer and advocate, we are fairly sure there may be some distinct differences between the practice of medicine in those disparate and distant venues.

 

We later got a “semi-official” response from the IL DOI sent to one of our contacts. The response is from an analyst with the IL DOI—we don’t have her permission to use her name so we aren’t going to publish it. To the extent her reply is from a state official in response to an official inquiry from whatever source, here is what it says (in pertinent part):

 

After receiving several calls and emails from your contracted companies this morning I felt it would be beneficial for me to intervene and attempt to clarify the intent of the company bulletin.  At this time, the above referenced bulletin does not include worker’s compensation or independent review organizations registered with this Department. All URO’s providing health utilization reviews will be required to have an Illinois office and hold contracts with Illinois licensed physician reviewers. Going forward all companies registered to perform UR (health) will have at a minimum of 1 year to comply with this bulletin. Our staff is currently working on a Q&A reference page to address all of the questions/concerns we have received.

 

We have no idea why or how this distinction can or should be made by our state administrators. We point out it is almost impossible to tell when medical care is going to be “workers’ comp” versus non-work-related healthcare; that status may change or morph on a minute-by-minute basis.

 

From the perspective of the workers’ comp industry, we assume from the official response above, the IL Dep’t of Insurance isn’t coming after you for either out-of-state WC UR or TPA services now or in the future. To our readers in the healthcare industry apart from workers’ comp, this memo will clearly affect your operations. If would appear you have a decision to make—if the DOI is going to require an Illinois office/presence, you can add one, if you don’t have one. If you don’t have one and don’t want to get one, you may have to sue the Department to block enforcement of this concept. Again, it is our strong perspective they don’t have a strong legal basis for what they are doing.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

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Synopsis: Cook County’s WC Cost Containment Program Success – A Shining Example of Good Government That Should Be A Paradigm for Others.

 

Editor’s comment: As WC healthcare costs continue to rise employers in both the private and public sector are looking for ways to reduce workers’ compensation costs. The second largest county in the nation, Cook County Government is no different.

 

In 2008, the Cook County Risk Management Dep’t in collaboration with a leading provider of integrated managed care GENEX Services Inc. developed and implemented a customized cost containment program. This was an ambitious endeavor which has become a comprehensive program that has expanded in phases over the past 5 years. Their medical cost containment program includes

 

v  Medical Bill Review (MBR)

v  Preferred Provider Organizations (PPO)

v  Case Management

v  Medical Diagnostic Testing and

v  Utilization Review (UR).

 

These initiatives continue to yield to impressive results for Cook County. Combined savings from program inception in August 2008 through fiscal year 2012 is over $47 million. Savings in 2012 alone reached a staggering $17 million. Medical Bill Review is the largest contributor with over $30 million in savings with $3.8 million realized from PPO discounts. The Return on Investment by this government body continues to grow year over year. As predicted, 2012 delivered an impressive ROI of $52.07 to 1, up from the 2008 ROI of $10.76 to 1.

 

The biggest surprise in savings was Utilization Review or UR. In 2005, the Illinois legislature passed Amendments to the IL WC Act which brought UR to our state for the first time. UR legislation was not widely accepted and often criticized in some quarters. The IWCC slowly and surely has accepted the UR claims tool to the point it has become commonplace. As we told our readers when it started in 2005-6, if you use it in non-litigated WC claims, you can’t miss on savings while also insuring your claimants receive quality care.

 

As IL employers in the public and private sector began to use this effective claim tool it became more understood, accepted and respected. Cook County has realized over $8 million in saving since implementing UR in 2008. The UR program was expanded in phases as the success began to impact costs and influence treatment patterns. By using the IL UR Guidelines the County of Cook has reduced unnecessary and excessive Physical Therapy by 26,000 visits. The more recent 2011 Illinois Work Comp reform strengthens the UR provisions giving additional consideration and credibility to UR determinations. The new provisions offer support for the program and contributed to increased medical cost savings opportunities.

 

Since 2008 Cook County’s workers compensation spend has averaged $20M and their team manages about a thousand claims a year. They also contribute their success to an increased effort on early intervention, improving overall communication, and a focus on Return to Work.

 

From their success, we urge our readers to get moving on the facets that have worked so well for this large organization. Their WC program successes are easy to quantify. If you need consultation and assistance on implementing UR, Medical Bill Review, PPO’s (with PPP’s to follow later this year), Nurse Case Management and Medical Diagnostic Testing, please send a reply.

 

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Synopsis: “Dent” Minimus, Non Curat Lex?? Is There No Imperfection So Tiny In IL WC That Our Reviewing Courts Won’t Demand Illinois Employers Fork Over Even More Money in WC Benefits?

 

Editor’s comment: Again, we don’t feel you can make this up, folks. In what we consider an astounding IL WC ruling in Dye v. IWCC, No. 3-11-0907WC, December 31, 2012, a divided 4-1 Appellate majority considered a claim for an infinitesimal “dent” on the side of an injured worker’s forehead. This microscopic “dent” was described by a physician as being one centimeter high and two centimeters wide—if you aren’t sure how metric measures translate, those measurements indicate the “dent” was .39 of an inch high by .78 of an inch wide. We consider that eenzy-teenzy facial imperfection, as described, to be a miniature issue to deal with; unworthy of appellate concern. Our headline above is a play on the Latin saying de minimus non curat lex which means little things can’t or shouldn’t be “cured” in law.

 

Claimant was asking for prospective medical care to refine the tiny dent into something less than a dimple. She was also asking for penalties and fees against her employer for their refusal to voluntarily offer additional medical care to render her “dentless.” The claim for penalties/fees was denied from the first request to present; the endless fight over medical care endured.

 

From our review of the various arbitration, review, circuit and appellate court decisions, it appears the employer paid for a hospital visit, a CT scan and two different visits to family doctors. After hearing the case, the Arbitrator found claimant already saw enough doctors under Section 8(a-3) of the IL WC Act. The Commission didn’t follow that view, as the two doctors legally provided to an injured worker under Section 8(a-3) were in the same clinic. However, the Commission didn’t award prospective “dent repair” as there wasn’t evidence of an observable disfigurement.

 

Our Appellate Court majority would have none of it. They reversed under the “manifest weight of the evidence” standard. As we have advised our readers on numerous occasions, we feel the “manifest weight” standard exists only to insure claimants receive benefits because it is almost never employed by our reviewing courts to deny benefits. If you carefully read their ruling, we have no true idea why the appellate majority didn’t feel either the Arbitrator or Commission didn’t fully and carefully consider the facts before them and rule this miniscule facial blemish didn’t need additional expensive medical attention. We also point out innumerable appellate rulings join to summarily find resolution of workers’ comp medical issues are within the sound province of the IWCC. We also read with chagrin the dissent by Justice Turner who pointed out the record before the Appellate Court didn’t have any photographic or other competent evidence of visible disfigurement.

 

Finally, we point out the relative madness of a claimant and her attorney taking a case for a “bumps and bruises” injury from January 2007 for a blemish the size of this capital letter O through four different levels of litigation to now have it remanded back to the IWCC for further findings. We have to wonder if the six years that have passed and the normal aging process have resulted in the complete disappearance of this tiny blemish since its “born-on” date. One has to wonder what the Commission will do on remand if the dimple has completely disappeared!

 

The ruling is on the web at: http://www.state.il.us/court/Opinions/WorkersComp/2012/3110907WC.pdf. We appreciate your thoughts and comments.