10-21-13; The Real Reason Why the Jury Should Still Be Out on 2011 IL WC Amendments; Trying an IL WC Nature & Extent Case in Ten Mins or Less; Arbitrator Doug Holland, RIP; Employer Exclusion...
/Synopsis: Dent This!! Crain’s Chicago Business Article Misses One Major IL Cost-Cutter—Give IL WC PPP’s a Chance!!!
Editor’s comment: In an article published last Friday, October 21, 2013 titled Why Illinois' Workers Comp Reform Only Made A Dent, Crain’s takes the stance the reforms enacted two years ago brought down medical fees charged by for treatment of injured workers. They assert Illinois workers' compensation costs remain “sky high.”
Crain’s reports medical payments for workers' compensation claims dropped 4.6% in Illinois last year even though the Illinois General Assembly reduced the Illinois Workers’ Compensation Medical Fee for workers' compensation-related office visits, surgery and other treatments by 30 percent in 2011--see their PDF. Crain’s relied on the study of 16 states by the Workers Compensation Research Institute or WCRI. The states were selected to represent the high, middle and low end of the cost spectrum.
WCRI asserts IL WC medical costs actually fell 24 percent last year, as IL providers were already charging less than the capped amount allowed by law. The WCRI study further indicates medical cost savings were offset by
Greater utilization of medical services;
Increased spending on litigation over medical claims;
Second opinions by IME’s and other consultants and
Miscellaneous measures to control medical costs.
Their study concludes total payments on a per claim basis were down just 1 percent.
While the study addressed only costs per claim, the WCRI report also agreed the Illinois WC system is well below the national average in the number of workers’ compensation claims per 1,000 workers. This is attributed to high unemployment across our state, particularly in the construction and manufacturing industries. We are sure their numbers are accurate—we also think the rapid new safety enforcement protocols required by very aggressive bird dogs at OSHA are causing work-related safety to go dramatically up, as OSHA has fined company after company in this state for dangerous or unsafe workplaces. If you want to purchase the WCRI report, please go to http://www.wcrinet.org/result/BMcscope_multi14_IL_result.html
We assure our readers there is a major cost-saving factor missing from this article and the related WCRI report. While the 2011 Amendments to the IL WC Act were implemented on June 28, 2011, the IL WC PPP provision was tied up at JCAR or the IL Joint Committee on Rules for months. In contrast, what we consider mildly humorous is rules required by the 2011 Amendments to manage and maintain drug/alcohol samples were enacted months earlier—these rules, titled "Alcohol and Drug Sample Collection and Testing" (50 Ill. Adm. Code 9140; 36 Ill. Reg. 8626), were made effective and adopted by the IWCC on November 15, 2012. Please note the drug and alcohol testing and sample maintenance rules may provide a block to the defense of intoxication so the Plaintiff/Petitioner bar would want them to move forward much faster than the IL WC PPP concept. We always feel it fascinating to see the interests of ITLA move so much more rapidly in our state’s administration than the interests of IL business.
The effective date of the IL WC PPP Rules being approved/enacted was about seven short months ago on March 4, 2013—the WCRI article couldn’t possibly measure the impact of that part of the 2011 Amendments to the IL WC Act. We feel strongly the IL WC PPP’s are game-changers and will make more than a “dent” in IL WC costs when they get rolled out. We point out the gurus at the IL State Chamber did an awesome job in setting up this concept—just by offering a WC PPP, you cut your employees’ choice of medical care down to one doctor. This means if your WC PPP network provides great care and service to your workers, you will have happy people who should follow the recommendations and come back to work smoothly. If your WC PPP stinks and provides poor care, your employees can still pick a doctor/health-care giver of their own choice. Early returns on network care indicate our clients and their WC adjusters are thrilled with the results—injured workers are sure their medical bills will be paid and are relying on the WC PPP networks to recommend solid medical care. What we tell our clients and readers to tell their workers—“if you treat with the PPP network, your bills will be paid; if you treat outside the network, your bills may be paid.” Most folks like the assurance they won’t have to worry about medical bill payment.
We again urge our readers to contact Guy Swanson at HFN, Inc. or Darren Stahulak at CorVel who can get you hooked up with their troops, network program and provide amazing network savings. If you need contact information for either of these great businesspeople, send a reply. They know the ins and outs of implementation and have been running these networks from Day One. Here is the list of all approved IL WC PPP’s: http://insurance.illinois.gov/consumer/approvedwcppplist.pdf If you are being told by your WC carrier or TPA there is something further needed to get into an IL WC PPP, either HFN, CorVel or the defense team at Keefe, Campbell, Biery & Associates can help. Just let us know what push-back you are getting and we will try to provide what you need.
If you aren’t sure why we are saying this to all of our clients and readers, please look at the bullet points above. If you get into an IL WC PPP, they will limit overutilization of medical services simply by the fashion in which medical care networks operate. If you hire a WC PPP, you won’t be litigating spending on medical claims—the network concept ends the need for such litigation. Second opinions and IME’s in a network are faster, cheaper and dramatically more effective. WC PPP networks are the epitome of “miscellaneous measures to control medical costs.”
As Shawn R. Biery, J.D., M.S.C.C. and your editor pointed out at a recent Accelerated Rehabilitation Centers confab, our great clients feel this is a “complete no-brainer” if your goal is to cut IL workers’ compensation costs. We hope the stat rats at WCRI keep their slide rules out and run the numbers again in couple of years when the WC PPP’s have reached broader acceptance and made a greater impact in the IL WC system.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: IL WC Trial Practice for Practitioners: Trying a Nature and Extent Case in Ten Minutes or Less.
Editor’s comment: Here are some thoughts for Plaintiff/Petitioner and Defense Lawyers on how to maximize vital IL WC Arbitrator time in handling the simplest of hearings. If you aren’t sure how to do this, please first watch great veteran WC attorneys to learn their tip/techniques.
§ First, have all exhibits copied, prepared and listed for your opponent—you need one copy for you, one for the court reporter and one copy for your opponent. If at all possible, try to advise your opponent of all exhibits well in advance of the hearing to avoid unnecessary surprise or objections.
Opposing counsel should also advise, in advance of the hearing, about any objections. This process should allow admission of exhibits to occur within about a minute or two. No one in this state did this better than former Arbitrator, now Commissioner Ruth White. We wish she would train other sitting Arbitrators on how to best streamline this aspect of N&E hearings.
Admission of unpaid medical bills--if they ever made the mistake of making me an Arbitrator no one would ever be allowed to ask questions about foundation for unpaid medical bills. This issue should be resolved prior to trial and outside the Arbitrator’s presence. The tender of such exhibits should be to confirm Respondent hadn’t paid them for whatever reason but the time taken to have witnesses testify to foundation is a waste of everyone’s time.
§ Next, the “Stip Sheet” or Request for Hearing form should be filled out and signed by both parties. This document should set the length of the hearing. If all matters other than nature and extent are agreed, there should be extremely limited inquiry on agreed issues. In making this statement, most Arbitrators waste time by asking if the parties ‘agree to the stenographic stipulation”. They already have in paragraph 14 of the “Stip Sheet”. We urge Arbitrators to stop asking this unnecessary and duplicate inquiry.
§ Thereafter, all issues except proof of disability can be proven with leading questions because the issues are undisputed. We suggest a nature and extent claim be called a nature and extent “prove-up” because all the parties are doing is rapidly “proving up” enough necessary information to allow the Arbitrator to make a simple decision on the value of permanency. We strongly urge against Petitioner’s counsel being required or allowed to ask open-ended questions in a prove-up because it provides the relatively nervous and novice Petitioner the opportunity to waste the Arbitrator’s time. For example, the name and job title could be obtained by asking: Your name is Peter/Paula Petitioner, isn’t that correct? Isn’t it also a fact you work at ABC Company as a laborer?
We agree Petitioner should probably testify about the accidental injury in an open-ended fashion but may be unnecessary because there is no dispute about the event or its compensability. Medical treatment should always be provided in a leading fashion. We consider it an abuse of the process to have a witness fumble through visits to doctors, surgeries and physical therapy when the attorney has the information in front of them and could be putting the major medical developments into evidence in a leading fashion. Defense counsel shouldn’t object to this occurring as the client accepted the treatment and should have paid for it, in a nature and extent only hearing.
§ TTD: No questions should be asked about TTD or periods of lost time in a nature and extent hearing. If the parties have agreed in writing on this issue, testimony is a waste of time.
Preliminary prep for the hearing:
Fill out and sign the N&E Stip Sheet with your opponent.
Fill out and sign the IWCC envelopes to facilitate transmission of the decision to your office and give to the Arbitrator.
Show your opponent marked copies of all exhibits and outline any objections.
Direct exam: questions to prove-up a nature and extent case:
1. State your name, please spell your last name.
2. You were employed at _______________.
3. Your job title was __________________.
4. Your duties were _____________ .
5. It’s been agreed you had an accident on ______________; tell the Arbitrator briefly what happened.
6. You then came under the care of Dr. _____________? [Counsel should spell the physicians’ names].
7. Dr._______________ referred you to ______________________ medical provider/institution?
8. Please understand all your medical records will be entered into evidence: Dr. _______ performed surgery on your ____________ on ____________, isn’t that correct?
9. You went to physical therapy at ________________.
10. You returned to work limited duty on ______________.
11. You returned to regular work on _______________.
12. Please outline any permanent work restrictions.
13. Point to any parts of your body in which you notice a change since the accident.
14. Tell the Arbitrator what if anything you notice about yourself at present.
15. What do you notice about yourself as you go through the activities of your daily life?
16. What do you do for yourself when you notice the condition you just described?
17. No further questions.
Cross-examination: Without giving up all of our secrets, sound cross-examination in a nature and extent case should confirm:
1. The last date treated or seen by a physician;
2. The last date prescription medications taken for the condition;
3. The work being performed by Petitioner at present with
a. physical description of the work and
b. heaviest object lifted.
c. Recreational activities.
d. Confirm claimant is/is not on social security disability.
Both sides offer exhibits. Parties rest, proofs closed.
Proposed decisions: Please note you can waive the need for a written decision. Don’t. The proposed decision protects counsels on both sides.
For Petitioners’ counsels, you have a much better chance of prevailing if you write a decision that mirrors the proof in the hearing and can simply be signed by the Arbitrator. Be reasonable and the Arbitrator will probably follow your lead. For defense observers, understand the Rules require defense counsel present a proposed decision to the Arbitrator within 14 days of the hearing unless the Arbitrator has other requirements.
We recommend adjusters insure defense counsels sends you advance copies of their proposed decisions to insure it matches your understanding of your goals and the goals of your attorney. The proposed decision should also be a readable and intelligent document—it will allow the adjuster to gauge your counsel’s competency and knowledge of the facts of the case and applicable law.
We appreciate tips, thoughts and comments. Please post them on our award-winning blog.
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Synopsis: God Bless and Keep IL WC Arbitrator Doug Holland.
Editor’s comment: He left us much too early. The IL WC Community was stunned to hear of the passing of Arbitrator Doug Holland at his home in Oglesby, IL last week. Doug was a professional, hard-working and sensitive administrator who brought his best to his job every day. We didn’t know it but, along with a busy schedule as an Arbitrator, Doug was president of the LaSalle County Historical Society.
Your editor has been quoted as providing our opinion Doug Holland was the “Father of the IL WC Pretrial.” During pretrials, Doug did a great job in pushing/prodding lawyers, claimants and adjusters into doing whatever it took to bring the parties together and avoid messy and prolonged hearings. He was so strong about the concept, we understood some attorneys would crab about it to the secret-powers-that-be when they wanted to go to hearing while Doug was trying to move claims to pretrials with much more rapid and fair settlements.
In 2002, when an aggressive new IWCC Chairman came to office, we feel the new Chairman wanted to supplant Arbitrator Holland’s proclivities about the importance of and need for WC pretrials. Shortly thereafter, an IWCC rule was enacted at the behest of our then-Chairman requiring pretrials to take second place to trials. With respect to the former Chairman who is now a sitting Circuit Court judge, we feel there is a balance between trials and pretrials that every Arbitrator has to bring to the table and Doug Holland balanced things very well in our view.
In our view, the 2011 Amendments to the IL WC Act, solidified the pre-trial concept to Doug’s thinking—it says:
(f) Nothing in this Section shall prohibit an arbitrator from holding a pre-trial conference in accordance with the rules of the Commission. (Source: P.A. 97-18, eff. 6-28-11.)
Whenever we read that language in the IL WC Act, we will always remember this great man. As you read this, Doug’s funeral is ongoing at St. Mary’s Church in Utica, IL. The condolences and best wishes of the defense team at Keefe, Campbell, Biery & Associates goes out to his colleagues, friends and family.
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Synopsis: Employer Exclusion Not Applicable to Volunteers in Recent Indiana WC Decision. Analysis by Joseph B. Moore, III, J.D.
Editor's Comments: The Indiana Court of Appeals reversed the dismissal of a trial court claim for damages against Purdue University following injuries suffered by a 4-H volunteer. The lower court initially dismissed the claim based on plaintiff's acceptance of medical benefits under a worker compensation policy. The Appellate Court ruled the acceptance of medical benefits did not change plaintiff’s status from volunteer to employee and the exclusive remedy defense was not applicable. The Appellate ruling may be found at http://www.in.gov/judiciary/opinions/pdf/10101301ewn.pdf
The Indiana Court of Appeals overruled the trial court in a recent decision following an appeal from a man injured by a runaway horse named Clu. Plaintiff John Einhorn was a volunteer at the Marshall County 4-H Fairgrounds. One of the horses at the Fairgrounds was spooked by noises and eventually broke loose on the grounds. Plaintiff was later trampled in an effort to wrangle the horse and sustained serious physical injuries. Defendant Purdue University, a fair sponsor, used its worker's compensation policy to obtain medical benefits for Plaintiff. Purdue asserted acceptance of those medical benefits triggered the employer exclusion provision excluding plaintiff from seeking civil damages. The trial court ruled in favor of Purdue, dismissing the matter.
The Court of Appeals reversed, finding acceptance of medical benefits did not change plaintiff's status from volunteer to employee. As Mr. Einhorn was not an employee, the exclusive remedy provision of the Worker's Compensation Act was not a valid defense to the claim. Despite the legal holding by the court, the claim was ultimately dismissed on separate grounds. The “equine activity statute” barred suit against “equine professionals” or “equine sponsors” because Plaintiff’s injuries would be the result of the “inherent risk of equine activities.” Plaintiff's counsel may petition for transfer to the Indiana Supreme Court.
Courts across the nation have struggled with the dilemma of volunteers in the workers' compensation arena. Earlier this year, California ruled despite acceptance of both medical and workers' compensation benefits, a volunteer had not admitted to being an employee. Two months later, the 5th Circuit Court of Appeals ruled a volunteer firefighter was not a government employee for purposes of filing a civil claim against the government. The 5th Circuit Appellate court noted a split among the federal appellate courts. . Some courts have adopted a multi-factor analysis in which compensation is only one element in determining work status. Many districts hold volunteer status may not be revoked or changed without compensation for work. See text of the 5th Circuit opinion here:http://www.ca5.uscourts.gov/opinions/pub/12/12-30274-CV0.wpd.pdf
This ruling may leave companies and volunteers in a precarious dilemma going forward. If employers don’t have the protection of the employer exclusion, they may be reluctant to cover medical costs of injured volunteers, even though it appears those volunteers may be covered under an insurance policy. Additionally, it is not clear from the current case whether volunteers may assert rights under the worker’s compensation acts as a means for recovery and treatment as they continue to be deemed “non-employees.”
This article was researched and written by KCB&A Indiana defense attorney Joseph B. Moore, III, J.D. Joe can be reached for questions, comments, or to discuss any defense issues at jmoore@keefe-law.com.