12-30-13; Our Suggested New Year's Resolution for Supreme Court Chief Justice Rita Garman; How to Best Authorize WC Medical Care; A Must-Read for WC Managers

Synopsis: Our Thoughts on Suggested Workers’ Comp New Year’s Resolutions for IL Supreme Court Chief Justice Rita Garman.

Editor’s comment: We salute esteemed Chief Justice Garman as she has starts her new job as basically the “Five-Star General” of our IL Courts system. As her “captains” and “lieutenants,” we want to provide a few important thoughts.

First, we note the Illinois Supreme Court has complete control of the five-member Illinois Appellate Court, Workers’ Compensation Division. In fact, the IL WC Act still says appeals from the Circuit Court are to be heard directly by our Supreme Court—several decades ago, the IL Supreme Court issued their rule changing that path to require the matter first be heard by the combined panel of the Appellate Court. The IL Supreme Court’s members decide who will be on the penultimate appellate panel. We are respectfully asking Chief Justice Garman take a stronger look at how that panel is made up and potentially open up the selection process with open hearings or discussion from our state’s business and labor leaders.

As you read this, our IL Supreme Court is composed of three jurists of Republican heritage and four who came from the Democratic party. If you read the recent and important report of the Illinois State Chamber of Commerce titled The Impact of Judicial Activism in Illinois, our State Chamber details nineteen WC cases of recent vintage in which the report says decisions by the Illinois Workers’ Compensation Commission that would have limited benefits to injured workers were overturned or greatly weakened by the Appellate Court, Workers’ Compensation Division. It is our reasoned legal opinion the 19 significant rulings demonstrate a strong pro-labor bias by the lower court’s long-term members.

“Sanity Clause” Reinstated by the IL Supreme Court in the WC Arena on December 19, 2013

As we reported last week, the most controversial and shocking of these IL WC appellate rulings was The Venture-Newberg-Perini Webster & Stone v. IWCC that would have increased IL WC benefits by billions of dollars by turning several million Illinois workers into “travelers” who would have then been covered for non-work-related injuries. We were happy to report that last week, our IL Supreme Court’s justices tossed the whole thing, regardless of whether the appeal was over factual or legal issues. Our IL WC system went from pointing to having the highest costs in the U.S. to returning to probably the middle of the top ten of the United States. We again applaud the Supreme Court for their great ruling. However, we hope the Court’s distinguished members see the bigger picture from what they did last week.

When You Can’t Change the Thinking, Sometimes You Have to Change the Thinkers

When we think of what happened, we recall a story about “Da Coach” Mike Ditka. When Ditka was a special teams coach for the Dallas Cowboys, during a game, someone went to Head Coach Tom Landry and told him Ditka had called a reverse on a kickoff return. Coach Landry sent a message back: “Tell him if he runs that play, he’s fired.” Ditka changed the call and never called it again while coaching there. When Da Coach became Head Coach of the Chicago Bears, he called and the Bears ran a reverse on a kickoff during Super Bowl XX. Probably the worst possible thing happened—Bears All-Pro cornerback Leslie Frazier tore his ACL during the runback and never returned to his pre-Super Bowl form. There is no question Da Coach made a poorly thought out decision and the Bears paid for it in the seasons to come. The point we are making is that managers may need to make changes when poor decisions are made.

On the IL WC Appellate side, we are never going to forget the system-deforming potential caused by the Venture-Newberg-Perini ruling we outline above. The same five-members of that IL WC Appellate Court are still on the same panel and while we don’t think they will replicate that challenging call, they may move to other similar legal concepts and rulings, again with an overall focus of increasing IL WC costs in any and every way. With respect to the members of the IL WC Appellate Court, we don’t think that is a solid idea. We suggest new members for the IL WC Appellate panel with fresh thoughts and perspectives be considered by Chief Justice Garman and her distinguished colleagues. We point out Chief Justice Garman can’t and won’t “fire” the appellate justices—we respectfully ask they simply be assigned to handle important appellate work other than their current WC assignments.

How About Some Diversity in the Appellate Court, Workers’ Compensation Division?

On another note, an article from the IL State Bar Journal from May 2013 states

The appellate courts fare better with a 35 percent female population. Huge strides have been made on the Appellate bench since 1990 when only two women served in the entire state. Today, the most females are found in the First District, while the court with the highest percent of female is the Second District with females representing 50 percent of judges. Both districts make up Chicago and the northern-most part of the State.

In over three decades of handling WC appeals, we have never seen a woman justice serve on the IL WC Appellate Court five-member panel. We urge Chief Justice Garman to consider increasing diversity in this important appellate group.

How About a Business Member or Two for the Appellate Court, Workers’ Compensation Division?

We also feel Chief Justice Garman and the other members of our highest Court should consider the opinions of business leaders, the IWCC itself, our WC defense firm and many of the other WC defense firms across our state. The last defense-oriented or pro-business member of the five-member WC Division appellate panel was Justice Allan Stouder in the middle 1990’s, about two decades ago. Justice Stouder would write brilliant dissents, highlighting how a given ruling would hurt the interests of Illinois jobs and businesses—we haven’t seen such a dissent since he left. In fact, we were surprised to see a dissent in the Appellate Court ruling in Venture-Newberg-Perini but by the second and third similar “travelling employee” ruling, that Appellate Court justice fell into line with his colleagues and stopped dissenting.

We assure our readers, it is our view the last pro-business ruling from the Appellate Court, WC Division was way back in 2007 when they issued Airborne Express v. IWCC and limited overtime to workers that used their seniority to get it. Seven years is a long time between defense-oriented appellate decisions. Several hundred rulings since then are generally considered very liberal, pro-labor or “activist”—the main ones are highlighted by the IL State Chamber’s great report on the subject.

Right now, all five members of the IL Appellate Court, Workers’ Compensation Division seemingly act in unison for the interests of IL labor and ITLA. We don’t feel one business-oriented ruling every seven years or more is going to bring our IL WC law into line. To the extent our highest court has three Republican members, shouldn’t at least two members of the lower court also have a business focus?

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

            --------------------------------------

Synopsis: Thoughts on WC Adjusters Authorizing Medical Care in the IL WC System.

Editor’s comment: There are several medical caregivers who may try to take advantage of you, if you orally approve medical care. Therefore, we feel treatment and surgery authorizations for IL WC claims have to be in writing. We also feel the following fundamental concepts should be in every letter authorizing care under Section 8 of the IL WC Act:

#1: This correspondence does not include authority for a physician or other healthcare givers to dispense prescription medications.

Please be advised prescriptions cannot be dispensed from the physician or other healthcare giver’s office. A prescription card has already been issued to cover any and all injury-related medications and has to be used by this patient. Bills received for this physician or other healthcare givers’ prescription services will be denied. Please issue a written prescription to the employee for any medications prescribed and have them fill it within our protocols.

#2: Light duty work is continuously available for this patient. We will not accept and pay benefits based upon “off work” notes without other requisite information.

Please note the patient’s employer has an extensive light duty program and is anxious to have the patient return to medical modified work as soon as the patient is capable of any light duty work. If the employer cannot provide light work for any reason, we will locate and provide alternative light work at a suitable charity. If the patient provides you information to the contrary, please immediately contact the undersigned to discuss.

#3 This authorization is limited to payment of medical billing consistent with the IL WC Act and Rules Governing Practice—all medical bills will be coded, priced and paid consistent with the applicable law/rule.

This authorization does not guarantee payment of the full, undiscounted amount of your billing--we will pay for this surgical procedure and follow up care according to either an Illinois Workers’ Compensation PPP, PPO contract or the Illinois WC Medical Fee Schedule or the combination thereof, whichever applies. If you feel this care might fall outside those laws, please contact the undersigned before proceeding with care.

#4: Additional pre-authorization may be required for all non-emergent care.

In the case of a true medical emergency during care authorized herein, insure the patient is taken care of and contact us as soon as possible thereafter . For non-emergent care, pre-authorization for any further referral or testing/treatment such as physical, occupational or hand therapy, MRI, EMG/NCV, work hardening/conditioning, additional surgery or FCE is required. If such care is provided without preauthorization, medical bills may be denied. Please contact the undersigned with questions or concerns.

We thank our amazing reader who provided many of these ideas. We would love our readers’ best thoughts on HIPAA-GINA, UR and IME’s—should we include provisions for them in such letters?

            --------------------------------------------------

Synopsis: A Great Book, A Great Man and a Great Story.

Editor’s comment: For our readers in the U.S. workers’ compensation industry, you need to consider reading this great book about changing your corporate culture and saving your company money in HR, safety and risk.

The book chronicles an inspiring story of innovative leadership and organizational transformation. Captain Mike Abrashoff took command of the worst-performing ship in our Navy and made it #1 by changing his leadership style and the culture but not the crew.

When Mike Abrashoff took command of the naval vessel, the USS Benfold, the ship’s performance ranked at rock-bottom of the entire U.S. Navy. Worse, the ship’s company and crew didn’t feel safe about using their high-tech equipment and weaponry should they be called into action.

Determined to improve performance, but without the power to hire, fire or promote personnel, Captain Abrashoff focused on what he could change: the ship’s culture. His innovative approach broke from the traditional command-and-control leadership style and sought to see the ship from the eyes of his crew; creating a guiding set of principles he called Grassroots Leadership.

When crew members asked Abrashoff to solve a problem, his standard response became, “It’s your ship; what would you do?” The result was an empowered and engaged team that turned the ship into the Navy’s top performer. People at every level in business relate to Captain Abrashoff’s dilemma: being held accountable for safety and performance results without having the ability to make the rules or the players. His results-oriented approach equips organizations with the strategies, tactics and tools necessary to unleash innovation, lead significant change and increase operational performance. We also note his approach crosses all organizational lines—Captain Mike asked the lowest ranking worker to his second-in-command for their “best practices” approach on a regular basis.

Publications have heralded this remarkable story and Abrashoff’s first book, It's Your Ship: Management Techniques from the Best Damn Ship in the Navy, is a best seller with nearly 1 million copies in print. Last year, the much anticipated 10th anniversary edition of It’s Your Ship was released with updated content and a new chapter. We urge everyone to read this great work.

12-23-13 NEWS FLASH IL Supreme Court Strikes Traveling Employee Expansion; Medicare Update by Shawn R. Biery, JD, MSCC; IRS Mileage Rate Announced for 2014 and more

Synopsis: Clearly There is a Sanity Clause!!! The IL Supreme Court Returns Our WC System To Only Covering Work-Related Injuries.

Editor’s comment: Happy Holidays to all of our readers!! We are very happy to advise the IL WC system reversed the decision of the Appellate Court, Workers’ Compensation Division in The Venture-Newberg-Perini Webster & Stone v. IWCC. The high court’s ruling is online at:http://www.state.il.us/court/Opinions/SupremeCourt/2013/115728.pdf

In the lower court ruling and three other similar appellate rulings that followed it, workers were injured going to or coming from work or on breaks. Illinois suddenly and without any warning defined “traveling employee” as any worker who

·         Worked at any worksite that wasn’t the “premises of their employer”;

·         Worked at two or more worksites for the same employer; or

·         “Traveled” as an essential part of their work.

We felt this was effectively global 24/7 WC coverage for many workers in a billion-dollar expansion of WC costs. Please note these odd and unprecedented definitions are not contained in the 104-year-old IL Work Comp Act or Rules Governing Practice. With respect to our jurists, it is our view these now-defunct terms/definitions were all “judicial legislation.” These definitions would render almost every construction worker, staffing employee, municipal employee, attorney, physicians/nurses and all transportation workers into the new legal status of “travelers.”

Having created these unprecedented definitions, the lower court ruled “traveling employees” were covered under workers’ comp or occupational illnesses for any “reasonable and foreseeable activity” from the moment they left their homes until they returned home. The coverage was applied “as a matter of law” so to dispute coverage would result in penalties/fees against the insurer/TPA. In our view, anyone who worked at their home would be covered all day and night. Again, the term “reasonable and foreseeable activity” isn’t defined in the Act or Rules. It is our view 99.99% of human activity leading to injuries and illnesses can be deemed “reasonable and foreseeable”—the terms are unquestionably subjectively viewed in the eye of the beholder because what is “unreasonable” to you might be very reasonable to another. Now, that concept has also been cancelled, invalidated and negated by our highest court.

Basically, what we would have been left with was two wildly different WC systems. One system was for “travelers” as outlined above—they were covered for any malady, injury or illness as a matter of law. The other system was the traditional WC system where you had to show your injury “arose out of and in the course of” employment.

Our IL Supreme Court overwhelmingly tossed all of it out as of December 19, 2013. As court-watchers and academicians, we were moderately happy to see the majority ruling consider whether the issue was factual or legal in origin. Our highest court clearly indicated it didn’t make any difference—under either standard, the lower court and IWCC ruling was over and out.

Is Anyone Embarrassed About This Mess?

Illinois work comp law isn’t that complex. As we advised, it has been around for more than a century. Here is how the IL WC administrative system handled the issue through five different levels of hearings/appeals:

Hearing Officer/Reviewing Court

For Traditional WC Legal Interpretation

For New, Unusual and Unprecedented WC Law

Arbitrator

Benefits denied

IL WC Commission

One vote for denial

Two votes for New Rule

Circuit Court

Benefits denied

Appellate Court, WC Division

One vote for denial

Four votes for New Rule

Supreme Court

Six votes for denial

One vote for New Rule

Our IL WC Commission and penultimate reviewing court gave us literally no warning as to what they were doing in the explosive and expansive interpretation provided. On December 6, 2012, the IL WC Appellate Court created new law that no one expected and that clearly would have pushed our state to become the most expensive state in the union for WC costs/premiums/benefits. All of the legislative reforms from 2005-6 and 2011 would have been completely reversed in a random and unfair fashion by our judiciary. Thankfully, 378 days later, the IL Supreme Court flushed it all down the drain and returned us to “sanity.” Our hope is to our IWCC and judiciary follows the law, as drafted, and no longer feels compelled to be a “super-legislature” moving forward.

How Did It End?

Well, you have to give full credit and kudos to our highest court and its illustrious members—they followed the law and common sense and tossed it out. You also have to give credit to lead defense attorney Ted Powers who fought and fought and won the ruling. The IL State Chamber provided their input for their members and followers with a solid report about IL WC judicial “activism.” We were also certain the IL State Chamber was ready with even more legislative changes to try to reverse this concept, if the courts wouldn’t do so.

Without meaning to toot our own horn too much, we also feel the great defense team at KCB&A earned some credit for our hard work in letting all sides understand how silly, unfair and unsustainable this legal concept was—we remain thrilled to see the confusion, costs and craziness kicked to the curb forever.

What Do We Take From It?

We continue to feel there is a group from ITLA or the Plaintiff/Petitioner’s bar that doesn’t agree IL WC costs should be reasonable and predictable. This same group doesn’t care if their WC ideas make sense for all sides or fit into traditional workers’ comp principles. They sometimes have the ear of the IWCC and our reviewing courts and won’t stop trying to influence them whenever and wherever possible. While we are sure their efforts are legal, we don’t feel outcomes like this are in any way a good idea for this state. We feel major national employers like Boeing and Safeway lose interest in doing business in our state when they see such confusion and chaos.

As we told our readers last week, simple concepts like firefighters shooting hoops during idle hours clearly isn’t covered under our IL WC Act. The Arbitrator and IWCC panel that recently awarded benefits circumvented the clear statutory scheme by playing with the facts or the law in a fashion that we consider similarly embarrassing—we just don’t see an “wriggle-room” on the topic. When they do things like that, we will forever think of rulings like this one from our highest court saying it doesn’t matter whether you look at the law or the facts, it just isn’t covered.

Our message to the entire IL WC community is clear—provide benefits to IL injured workers to the extent our legislature outlines them. Follow the simple and patent meaning of the law provided to you. Don’t finger-paint new law that no one has considered or expects. We don’t feel the administrators at the IWCC or reviewing courts should have license to deform the statutory language in new, untested and unprecedented ways.

The 2005-6 and 2011 Amendments to the IL WC Act were forged in the hard light of day with all sides present and providing their input. No one on either side of the IL WC matrix likes all of the changes but we are all stuck with them. We are confident the amendments will work to bring our WC costs in line, if we adhere to them.

God Bless All Of Our Readers, Friends and Clients. Season’s Greetings to you and your family.

            ------------------------------------------------

Synopsis: Update on WC Medicare Issues: More Specific Guidelines on Protecting Medicare’s Interests; Watch for Penalties!

Editor’s comment: The Centers for Medicare & Medicaid Services has submitted two items of interest to our readers for review to the Office of Management & Budget (OMB) in recent months with regard to Medicare Secondary Payer Compliance. The OMB is being asked to approve a Notice for Proposed Rule Making with regard to how CMS expects its interest with regard to future medical be managed in liability claims and has also moved forward to on setting rules regarding Mandatory Insurer Reporting Penalties.

Once approved by OMB, the separate rules will be unveiled for public comment and the public commentary period is then open for 60 days. Assuming the amount of public comment anticipated, there is likely to be a Further Notice of Proposed Rulemaking issued which would extend the process and delay any rule being finalized to the point of having a Report & Order is issued.

You should expect something no sooner than sometime during the first quarter of next year. While the liability claim rules only peripherally affect WC claims with some liability issues concurrent, the rules with regard to safe harbor consistent with the requirements of the MMSEA law of 2007 and the SMART law signed into law in 2013 will be important to know your risk if Medicare’s interests are not seriously considered. It should be noted that there is no true set time frame for CMS to act so the process is open ended to an extent. We will continue to update as the notices come out and are prepared to present public comments to pressure for favorable rules for our clients.

This article was researched and written by Shawn R . Biery J.D., MSCC and he can be reached at 312-756-3701 or sbiery@keefe-law.com. Both Shawn and Matt Ignoffo at mignoffo@keefe-law.com  are certified MSA consultants in our office who are prepared to field any questions you may have.

            -----------------------------------------------

Synopsis: IRS Announces 2014 Standard Mileage Rates.

Editor’s comment: Claims handlers should adjust IME mileage payments. In Section 12 of the IL WC Act, the law requires self-insured employers, insurance carriers and TPA’s to provide mileage, meals and time lost from work to be paid as part of scheduling an IME for an injured worker. On Dec. 6, 2013, the Internal Revenue Service issued the 2014 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. This is the rate used by the IWCC to provide mileage for IME’s.

Beginning on Jan. 1, 2014, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:56 cents per mile for miles driven. The expense rate decreased one-half cent from the 2013 rates.

If you have questions or concerns, send a reply.

            -------------------------------------

Synopsis: What Does a U.S. Employer Do With a Worker That Has Severe Medical Issues?

Editor’s comment: Under the ADA, this question is coming at us more and more. In Gogos v. AMS Mechanical Systems, Inc., our federal Seventh Circuit Court of Appeals considered a claim where the employee filed a suit for disability discrimination claim against his employer. The worker alleged he was disabled because of episodes of very high blood pressure, intermittent blindness, and chronic blood-pressure condition. He further alleged these medical problems substantially impaired major life activities involving his circulatory function and eyesight.

Despite all of those significant and game-changing medical problems, the worker alleged he was qualified to perform the “essential functions of his job.” In our view, unexpected temporary blindness would render any worker a health and safety risk to themselves and others. However, we feel the employer would have to carefully evaluate the medical condition’s inception, duration and severity before taking job action.

This worker alleged he suffered an adverse employment action because of his disability, in that he was fired immediately after he reported his medical conditions to his foreman. In our view, the employer has to document, document and further document their investigation, attempts at reasonable accommodation and overall handling of such conditions. If you need help in dealing with similar claims in your workplace, send a reply.

12-16-13; If You Haven't Starting Using Impairment Ratings for IL WC Claims, Do!; Important Firefighter Pension Ruling-Analysis by Jenn Maxwell, J.D.; Basketball Isn't WC in IL Law and much more

Synopsis: Note to IL Claims Handlers, Risk Managers and Other WC Administrators—Only Use Impairment Ratings For IL WC Claims If You Want to Save Money!

Editor’s comment: The 2011 Amendments to the IL WC Act statutorily changed the criteria for evaluating permanent partial disability for injuries that occur on or after September 1, 2011. We feel impairment ratings should be admissible for WC claims arising from injuries prior to that date—the call on allowing/considering a pre-statutory impairment rating is up to the Arbitrator assigned and the Commission, if the matter is administratively appealed. In simplest terms, an impairment rating is valid medical evidence of permanent loss consistent with Section 8(c), (e) and (d-2) of the Act. In our view, impairment ratings are admissible for all pending IL WC claims but have to be considered for claims for DOL’s after 9/1/2011; the weight such evidence is given is up to the sound discretion of the hearing officers.

The IL WC Act now indicates:

Pursuant to 820 ILCS 305/8.1(b), permanent partial disability for accidental injuries that occurred on or after that date shall be established using the following criteria:

(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” shall be used by the physician in determining the level of impairment.

(b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors:

(i) the reported level of impairment pursuant to subsection (a) (e.g.; the AMA rating)

(ii) the occupation of the injured employee

(iii) the age of the employee at the time of the injury

(iv) the employee’s future earning capacity

(v) evidence of disability corroborated by the treating medical records.

No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.

What is the Debate over “Disability” versus “Impairment?” How Does That Impact the IL WC Act’s requirement of “Permanent Partial Disability?”

AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition indicate:

1.    “Impairment” is a significant deviation, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease.

2.    “Disability” has been defined as activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease.

3.    “Impairment rating” has been defined as a consensus-derived percentage estimate of loss of activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living (“ADL’s”).

4.    “ADL’s” Basic self-care activities performed in one’s personal life such as feeding, bathing, hygiene and dressing.

Impairment and disability in IL WC are disparate concepts. The AMA impairment rating is a component of the PPD percentage loss of use assessment, but our new statute doesn’t necessarily equate the impairment rating and the Arbitrator’s determination of the proper value for permanent partial disability.

Why Were the AMA Guides Included In the 2011 Amendments to the IL WC Act?

1.    During the crooked Blagojevich years, PPD awards were completely random, way higher than previous administrations and appeared dishonest.

2.    AMA Guides provide source for greater uniformity in permanency awards.

3.    AMA ratings are typically much lower than the traditional PPD award for the same injury.

Who Can Prepare an AMA Rating Report?

1.    See above--Section 8.1(b) of the IL WC Act requires the report be prepared by a physician licensed to practice medicine in all of its branches. Accordingly, non-physicians such as chiropractors, osteopaths, allopaths or registered physical therapists are not permitted to provide impairment ratings in IL WC.

2.    Please note the IL WC Act, as amended does not, require the physician be “certified” or participate in any particular training to perform an AMA rating.

3.    Please further note there is no requirement the physician providing the rating be licensed in the State of IL—several Plaintiff/Petitioner lawyers have outlined objections to out-of-state physicians providing ratings.

Can/Should a Treating Physician Perform an AMA Rating?

AMA impairment ratings are provided by lots of treating physicians who handle work injuries in other jurisdictions. However, the AMA Guides themselves indicate treating doctors should not provide AMA impairment ratings as they are not independent and can be are biased in favor of the patient. The IL WC system considers even patient-biased AMA ratings to be so much lower than traditional IL WC PPD values, treaters are encouraged to provide them, regardless of bias.

Can/Should the Workers’ Compensation Insurance Carrier/TPA Request an AMA Rating From the Treating Physician?

In our view, we have no particular concern about an NCM, insurance carrier or TPA asking a treater for an impairment rating. Some of our colleagues consider the request for an impairment rating from a treater to potentially violate the silly, evidentiary ruling in Hydraulics, Inc. v. Industrial Commission. Win our view, the Hydraulics ruling was trumped by HIPAA anyway. We don’t have a problem with an insurance carrier/TPA letting the unrepresented worker know they want an impairment rating, asking if it is okay to seek such a rating from the treater and then translating it into cash and offering it to the worker in settlement of their claim.

In contrast to this advice, we are advised some petitioners’ attorneys advise they may:

·         Never request an AMA rating from a treating physician;

·         Routinely object to any request by the insurance carrier/TPA for an AMA rating by the treating physician;

·         Object to any AMA rating provided by a physician retained for that purpose.

·         Find extraneous and odd reasons to object to confuse Arbitrators and Commissioners in considering impairment ratings.

Can a Physician Performing an IME Pursuant to Section 12 of the WC Act Provide an AMA Rating?

There appears to be no reason an IL WC IME physician cannot provide an impairment rating as part of an IME. Where a rating is provided by an IME physician or any other physician retained for that purpose, it is important they be provided with the requirements of the statute and specifically address not only the AMA rating but the other factors specified, including loss of range of motion, loss of strength, measured atrophy of tissue mass consistent with the injury, and any other measurements that establish the nature and extent of the impairment.

How Much Does an AMA Rating Cost?

You can’t rely on the IL WC Medical Fee Schedule for pricing. We have several great doctors who can provide them—we are happy to provide projected costs. Send a reply.

When Do You Want to Get the AMA Rating?

In short, you want to thing rating at maximum medical improvement. This has been defined by the AMA Guides as “a status where patients are as good as they are going to be from the medical and surgical treatment available to them.”

IWCC Use of Impairment Ratings When Presented

When you present them, the current three IL WC Commission panels are considering an AMA rating in any and all permanency awards. The Commission voted “unanimously” to provide the following recommendations to the Arbitrators regarding impairment ratings:

·         An impairment rating report is not required to be submitted by the parties with a settlement contract;

·         IL WC Arbitrators are considering impairment ratings and approving pro se settlements in reliance upon the;

·         If an impairment rating is not entered into evidence, the arbitrator is not precluded from entering a finding of permanent partial disability consistent with traditional and higher metrics.

In our reasoned legal view, the concept of impairment ratings is a very solid claims tool that all insurance carriers/TPA’s need to use, when they want to save money. Please remember the debate over what Petitioner/Plaintiff attorneys are going to agree to or disagree about in relation to impairment ratings won’t ever hit the majority of your IL WC claims—there are tens of thousands of nonlitigated IL WC claims where a zero or low rating might keep claimant from even going to an attorney. If you don’t start asking for ratings or getting them, we assure you that you are falling behind your competition. If you want KCB&A to get a pro se settlement approved in IL for the rating at a flat rate, send us the file.

If you need help better understanding the role of impairment ratings or information on who to use for them, send a reply.

            ---------------------------------------

Synopsis: Firefighter/paramedic’s Sensitivity to Latex Gloves Doesn’t Equal Lifetime Benefits. Analysis by Jennifer J. Maxwell, J.D.

Editor’s comment: The Illinois Appellate Court (2nd District) in Kim L. Edwards v. The Addison Fire Protection District Firefighters’ Pension Fund affirmed the decision of the Board of Trustees of the Addison Fire Protection District Firefighters’ Pension Fund and in doing so denied a firefighter’s application for lifetime line-of-duty disability pension benefits under the Illinois Pension Code.

In the application, her disability was described as “latex allergy worsening over the past two years due to exposure at Addison Fire Dept.” and her cause of illness was repeated exposure to latex through gloves being used on ambulances/engines. The Appellate Court noted in order to establish a firefighter’s entitlement to line-of-duty disability benefits, the following elements must be proved: 

1.    Claimant is a firefighter;

2.    Claimant is suffering from a sickness, accident, or injury;

3.    Such sickness, accident, or injury was incurred in or resulted from the performance of an act or duty or from the cumulative effects of acts of duty;

4.    The firefighter is physically disabled for service in the fire department; and

5.    The disability renders necessary the firefighter being placed on a disability pension.  

There is no requirement that an act of duty be the sole or even primary cause of the applicant’s disability; it is sufficient that an act of duty was an aggravating, contributing, or exacerbating factor (sound familiar WC folks?).

The Court concluded the Board’s decision was not against the manifest weight of the evidence and the Board found the following:

• Edward’s own testimony, examinations and discussions with various examining doctors demonstrated a lack of severity of her allergy and nondisabling nature of the reaction to latex;  
• Edwards did not discuss such an allergy with any of her treating physicians between December 2003 and September 2008;
• Edwards never noticed any problems with latex until July 2008; and
• Edwards never missed any work because of it.

The Board also noted Firefighter Edwards’ concomitant filing before the IL Department of Human rights in which Edwards alleged her duty was unrelated to her ability to perform the essential functions of her job. The Court specifically noted the Pension Board acknowledged the sensitivity to latex exposure but determined it was not severe enough to constitute a disabling sickness within the meaning of the Pension Code and she failed to prove she was permanently disabled within the meaning of the Code. 

The Court further noted while “it might seem incongruous that [she] could be found unfit for duty because of latex sensitivity yet be found ineligible for a pension based on the same physical infirmity” the Court was quick to state it had previously considered this issue and found no conflict—the bar is set lower for a municipality seeking to discharge an unfit firefighter than for a firefighter to obtain a lifetime line of duty disability pension.

Edwards was denied her disability benefits under the Pension Code, but would she have been denied the generous workers’ compensation benefits in IL?  No. There are cases in which Petitioners have received permanent partial disability benefits for work related allergic reactions to latex. Does this seem incongruous? We anticipate the Court’s answer would be “No” and then it  would explain in so many words that the bar is set even lower for a firefighter or any employee to obtain worker’s compensation benefits under the Illinois Work Comp Act. 

We appreciate your thoughts and comments. This article was written by Jennifer Maxwell, J.D. who can be reached at jmaxwell@keefe-law.com Please feel free to reply with any comment or concern.

            ---------------------------------------------

Synopsis: The Challenge of Predicting When the IWCC Will Follow the Law.

Editor’s comment: We read a recent IWCC ruling that we consider hard to understand. Read the following, consider what they did and give us your thoughts.

In Campbell v. Taylorville Fire Dep’t, the IL WC Commission panel was considering a set of facts we are asked about all the time. In this claim, the Fire Department has a basketball hoop for its sometimes idle firefighters. As a rapid aside, we encourage Taylorville and all similarly situated towns/villages and cities to consider starting “public safety” departments where you have combined fire and police departments to avoid having idle government workers, particularly firefighters.

Trust us, you truly don’t need lots of expensive firefighters sitting around the station waiting for fires that never happen at your expense. Trust us, building codes and fireproofing homes and other buildings has dramatically cut the number of fires faced by your local fire department and you haven’t done the needed research about how many fires hit your district every year. If you need more information about how to move your municipality to a combined “public safety” department and save millions for your taxpayers, send a reply.

In this ruling, Claimant Campbell sprained his ankle playing B-Ball; not much of a shock there. There was no question he wasn’t ordered or assigned to play round ball. This claim comes under the aegis of Section 11 of the IL WC Act that is crystal clear. For you history buffs, the genesis of Section 11 was two different claims against Jewel Food Stores© exactly one year apart. In both claims, a Jewel employee was playing in a softball game while off work. Both workers were injured sliding into second base. In what was something of an embarrassment to the WC “wise guys” of the day, one worker received WC benefits and the other had the claim denied.

Thereafter, the IL legislature enacted Section 11. Paragraph 2 of this section doesn’t require a masters’ degree to understand it:

Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.

In our view, basketball is by definition a “voluntary recreational activity” for anyone other than members of the Chicago Bulls. If this firefighter wanted to fit into the “exclusion, he has to demonstrate he was “ordered or assigned” to play. In the Campbell v. Taylorville Fire Dep’truling above, the parties effectively stipulated the firefighter wasn’t ordered to play basketball. To get around the statute, it appears to us fire department management of Taylorville agreed to testify they wanted the firefighter to participate because it was good for “exercise, team building and recreation.”

In our respectful response, we want to confirm our position is “who cares?” There is no question, none, that Firefighter Campbell was not ordered or assigned to play round-ball. He did so at his own risk. There literally hundreds of potentially silly reasons his bosses may have conjured up as a reason for him to participate—weight loss, bone density, heart health, a strong neighborhood presence, pretty hook shots or whatever you like. None of it has anything to do with the statute or its requirement that “voluntary recreational programs” are not covered under IL WC. We send kudos to Commissioner Kevin Lamborn who filed a solid dissent pointing out this simple statutory requirement to the other Commission members.

Please also note decisions like this are infuriating to IL business. No one has any idea when they can allow workers to go to company-owned gyms or aerobics classes or any other exercise. As we have told our readers many times, the laxity with which some IWCC commissioners provide benefits outside the statute to public sector workers poisons the well for private sectors employers. Lots of companies want to provide work out facilities and classes for their workers—decisions like this make that concept very challenging.

We do have a form for your workers to consider and sign that confirms their participation in voluntary recreational activity is voluntary. We can’t guarantee it will work but it does make it even harder for our hearing officers to ignore the law. If you want to see it and implement it for your team, we are happy to send you a sample. Please just sent a reply. We also appreciate your thoughts and comments.