1-13-14; If It Smells Like Politics--IL WC Gets a New Arbitrator; Shawn Biery, JD with a Medicare Update; Important Medicare Ruling with National Implications from Matt Ignoffo, JD and more

Synopsis: If It Smells Like Politics, Tastes Like Politics and Feels Like Politics, It Probably Is Politics—IL WC System Gets a New Arbitrator.

Editor’s comment: Exactly ten months to the date of the next gubernatorial election, Governor Quinn surprisingly appoints a complete unknown to be an IL WC Arbitrator. On January 7, 2014, the IWCC announced Jessica Hagerty’s appointment to take a position as a workers compensation hearing officer.

Jessica who, you might ask? Newly appointed Arbitrator Hegarty is a licensed IL lawyer and appears to be a very good one. She has worked as a successful Plaintiff Attorney for a number of years. However, to our understanding she has never handled a workers’ compensation claim. Ms. Hegarty joined the Hegarty & Hegarty Plaintiff personal injury firm in 2004. Prior to working as a Plaintiff personal injury lawyer, she spent nearly four years at the Cook County State’s Attorney’s Office handling criminal cases. The Hegarty & Hegarty website indicates Ms. Hegarty generated millions in settlements and verdicts for injured persons and their families. What the law firm website doesn’t mention is anything to do with workers’ comp.

So how did Ms Hegarty get the nod to become a workers’ comp hearing officer? Well, it appears her hubby is Terrence Hegarty of the same firm. Mr. Hegarty is a big hitter Plaintiff lawyer who is a past president of the Illinois State Bar Assn. His website describes him as “one of the most … feared personal injury attorneys in Illinois.” His website also describes him as a “personal injury titan.”

It is no secret that powerful Plaintiff attorneys commonly donate generously to major Democratic campaigns. You must remember as well that Governor Quinn stripped out the civil service protections afforded IL WC Arbitrators during his past administrations. Arbitrators now basically serve solely at the Governor’s whim. This major job opening wasn’t posted on the IWCC or CMS website. As you read this, IL Arbitrator candidates don’t have to take a WC class, you don’t have to pass a competitive Arbitrator’s test anymore; you don’t have to know anything about the system. Candidates need only be licensed attorneys to qualify. Therefore, Governor Quinn is free to appoint virtually any licensed attorney in the State to this post.

While we would typically prefer to see a veteran workers’ compensation attorney fill such a vacancy, we cannot forget that until recently, Arbitrators were not even required to be attorneys at all! Anyone could be appointed to the post. In our view, the appointment of a veteran attorney is far preferable to a non-lawyer. We only hope that Ms. Hegarty brings the requisite impartiality to her position and sheds any Plaintiff/Petitioner-oriented tendencies of her former practice. Only time will tell; we will continue to watch and report.

On a related note, former Arbitrator Steve Mathis is now Commissioner Mathis. We congratulate him and wish him well in the new post.

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

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Synopsis: Update on Medicaid Provisions in recent legislation….forewarned is forearmed! Analysis by Shawn R. Biery, J.D., M.S.C.C.

Editor’s comment: Recently passed Federal budget legislation included several provisions with regard to Medicaid which are likely to have some relevance for our readers and clients. HJ.Res.59 passed Congress and was signed by the President on December 26th and includes:

Three important changes to Section 202 with regard to Medicaid third-party liability law (which affirms Medicaid’s position as payer of last resort) with three changes to be effective October 1, 2014.

• There is an amendment to section 1902(a)(25)(E) which will allow a state to delay payment for prenatal and preventive pediatric care for 90 days after the date the provider initially submitted a claim to the third party payer, if the state determines doing so is cost-effective and will not adversely affect access to care.
• An amendment to section 1902(a)(25)(F) will allow a state to delay payment for 90 days for services where child support enforcement is being carried out. The state could continue to make payment within 30 days, if it found that to be cost-effective and necessary to ensure access to care. (This modifies mandatory exceptions to the requirement that State Medicaid agencies reject medical claims when another entity is legally liable to pay the claim.)
• There are also changes to sections 1902(a)(25), 1912 and 1917 which gives states the ability to recover costs from the full amount of a beneficiary’s liability settlement, instead of only the portion of the settlement designated for medical expenses, and it establishes an option for states to place liens against Medicaid beneficiaries’ liability settlements. In our view, this is a big deal—they have access to the entire settlement now to recover.

Section 1201 provides for a temporary extension of the Qualifying Individual (QI) Program which will now extend the QI program through March 31, 2014 and allocates $200 million for that period. (This program helps pay Medicare Part B premiums for certain low-income beneficiaries.)

Section 1202 provides a temporary extension of Transitional Medical Assistance (TMA) which extends section 1925 TMA through March 31, 2014. TMA provides continued medical coverage for certain families who become ineligible for medical assistance because of increased earnings.

For the extension of QI and TMA, Congress will need to act to continue them beyond March 31st.

Section 1204 makes two changes to Medicaid Disproportionate Share Hospital (DSH) payments by delaying Affordable Care Act DSH reductions for two years. (DSH reductions were to have gone into effect on October 1, 2013; instead, the legislation delays the reductions until October 1, 2015). However it also doubles the reduction which would otherwise have applied. The legislation also creates another special rule for calculating DSH allotments in FY 2023 which will match the statute which spells out special rules for calculating the FY 2021 and FY 2022 allotments.

The full text of the legislation can be found here: http://beta.congress.gov/113/bills/hjres59eah3/BILLS-113hjres59eah3.pdf

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.

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Synopsis: No Medicare Set Aside Money for Undocumented Immigrant per Oklahoma Court—Similar Legal Approach Would Apply to IL, IN, WI and MI. Analysis by Matthew Ignoffo, J.D., M.S.C.C.

Editor’s Comment: The facts in the case of Ramos v. Becco Contractors, Inc. involve an accepted ankle injury of Jose Ramos. Ramos eventually sought benefits for permanent total disability and in doing so included a nine-digit number in the blank for his Social Security number on a form. The parties eventually reached an agreement where the employer, Becco, would pay Ramos $125,000.00 and:

[I]n addition, the [Employer] agrees to fund [a] [Medicare Set Aside] in the amount of $12,361.18. In the event the [Medicare Set Aside] as approved by [the Centers for Medicare and Medicaid Services, hereinafter CMS] exceeds this amount, the Claimant agrees to provide additional funding from the settlement proceeds.

At a hearing to approve the settlement Ramos testified through an interpreter his understanding of the MSA issue and duty to pay for future treatment from such funds. The trial court approved the settlement on June 1, 2009. Ramos subsequently became a naturalized U.S. citizen on December 18, 2011.

The employer paid the principal amount of $125,000.00, but refused to fund the Medicare Set Aside or pay the amount to Ramos because upon submission of the Medicare Set Aside to CMS, as it was discovered Ramos was not Medicare eligible. The number reported by Ramos as his Social Security number was only a taxpayer identification number and Ramos was not Medicare eligible until he became a naturalized citizen in December 2011.

Becco argued because Ramos misrepresented his status as a holder of a valid Social Security number and was ineligible for Medicare benefits at the time he filed his claim and at the time of settlement, the provision of the settlement agreement calling for funding of a Medicare Set Aside was unenforceable on account of Ramos’ misrepresentation of Social Security and Medicare eligibility.

The trial court held the MSA provision of the settlement agreement was unenforceable noting the incorrect social security number was a material misrepresentation of fact by Ramos and the employer was relieved of any requirement to fund the MSA or pay the equivalent sum to Ramos.

On appeal Ramos argued he did not appreciate the requirements for Medicare eligibility and the parties were mistaken in this regard with there being no intentional misrepresentation on his part. The Appellate Court sustained the order of the trial court noting the parties settled the case based upon what appears to be, at best, a mutual misapprehension of Ramos’ eligibility for Medicare benefits. However, at the hearing on approval of the settlement agreement, Ramos acknowledged his understanding:

(1)  the Medicare Set Aside provision would be submitted to CMS for approval, and

(2)  he would not receive the payment of the Medicare Set Aside funds unless or until CMS approved.

Due to the fact Ramos agreed the Medicare Set Aside would not be paid without CMS' approval, and CMS' approval of the Medicare Set Aside provision was not obtained, the Court held Ramos may not now complain of the employer’s failure to pay the Medicare Set Aside.

Essentially the court found a condition precedent, CMS approval, and because this condition was not met the MSA did not need to be funded. Without such language it is possible the employer would have had to fund the MSA, or pay the additional money directly to Claimant, even though Claimant was not eligible for Medicare at the time of settlement.

We can take away two main points from this case. First, we recommend the proper investigation into a Claimant’s eligibility for Medicare be performed prior to settlement. Second, the settlement agreement language used is always crucial and especially so when MSAs are involved. A thought we had when reading this case is the situation in which the carrier or employer agrees to keep medical open until the approval of the MSA by CMS. If such language was included in the settlement contract language here it appears Ramos would be entitled to continued medical treatment indefinitely because the MSA was never approved by CMS. The attorneys at KCBA deal with these issues on a daily basis and are more than happy to assist you with your MSA and settlement questions.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C.  Please feel free to contact Matt at 312-756-3729 ormignoffo@keefe-law.com. Both Matt and Shawn R. Biery at sbiery@keefe-law.com are certified MSA consultants in our office who are prepared to field any questions you may have on a 24/7/365 basis.

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Synopsis: IL Appellate Court Justice Patrick J. Quinn, rest in peace.

Editor’s comment: We are sad to report the second most senior justice in the First District Illinois Appellate Court died last week in his chambers. Justice Patrick J. Quinn, 60, was found unresponsive inside his chambers. Quinn was elected to the Appellate Court in 1996. He was a member of several committees, including the district's executive committee.

The condolences and prayers from the defense team at Keefe, Campbell, Biery & Associates goes out to his family and friends.

1-6-2014; New "Repetitive Working" Ruling Analyzed; No Phones-to-the-Ear While Driving WC People!; IWCC Fee Schedule and WCRI Indicate IL Med Costs Dropping and more

Synopsis: Where’s That Dictionary??—“Activist” IL Appellate Court, WC Division Redefines the IL WC Act So Workers Don’t Have to Suffer an ‘Accident’ and No Longer Need an ‘Injury.’

Editor’s comment: As we advised last week, the IL State Chamber recently issued a report about 19 “activist” rulings from our IL reviewing courts that change or modify the legislative scheme to, in some instances, provide benefits outside the expected language of the Illinois Workers’ Compensation Act. We are sad to report to our clients, readers and business observers the 20th such ruling was issued on New Year’s Eve 2013 or just 12 days after the IL Supreme Court knocked out the Venture-Newberg-Perini Webster & Stone v. IWCC “traveling employee” decision. We hope this new ruling is also sent to our highest court for their consideration.

In the ruling in Village of Villa Park v. The Illinois Workers' Compensation Commission, issued December 31, 2013, a
Village employee suffered from spontaneous knee failure while simply walking down stairs at work. He was going from a meeting to the employee locker room. The unanimous appellate ruling found the employee’s occasional use of the ordinary staircase somehow was an “accident.” The ruling does not describe any safety failure, defect, foreign substance, poor lighting or other issue with the stairs.

We would love to see the dictionary where it says it is an “accident” to occasionally walk on a safe and ordinary staircase. In our view, Illinois is the only state among the United States that now has such a definition. There are numerous IL Supreme Court rulings that define “accident” and it typically means something unforeseen, some unexpected defect that led to a slip, trip or fall with an actual traumatic injury.

We Feel This Unexpected Ruling Reverses Numerous Past Fall-Down Decisions

Numerous IL Appellate rulings from First Cash Financial all the way back to theChicago Tribune v. IC ruling in the early 1980’s all require the employee show a defect or problem in the area of their fall. All of those rulings appear to have been implicitly or explicitly reversed by this new standard. It would appear all a worker now has to demonstrate is they were at work and occasionally had to walk around their workplace before suffering a personal problem that has literally nothing to do with work, other than the coincidence of their body breaking down from typical actions.

Tell us, if you will, how to effectively defend claims such as

·         A school teacher who writes on a whiteboard with a marking pen and suffers a spontaneously dislocating shoulder;

·         A nurse pushing an infant patient on a hospital cart whose hip unexpectedly fractures;

·         A secretary walking to get paperclips whose ankle gives way at work without any known cause.

We don’t feel spontaneous knee failure or any of the problems in the examples above should ever be called an “injury.” Claimant in the Village of Villa Park ruling unquestionably suffered from a non-work-related problem that failed due to the routine progression of his problems. If you have a dislocating shoulder or torn meniscus or avascular necrosis, the body part is going to continue to cause problems of a spontaneous nature; your body gives you some warning but eventual failure can be both unpredictable but also certain. When that failure coincides with your work, it isn’t an “injury” it is the expected presentation of your underlying problem. It isn’t an “aggravation” or “injury.”

We don’t think this new idea makes much sense and it is going to lead to hundreds of new and indefensible “repetitive working” claims where our aging workforce suffers the effects of getting older and can “blame” their problems on their employers to get IL WC high permanency awards. Please remember the word “indefensible” means no one needs go to a lawyer or have a hearing before an Arbitrator—globally covered WC claims that are considered indefensible must be picked up by the insurance carriers and TPAs and benefits paid. In our view, it will be much easier to get WC benefits if our Commission and reviewing courts eliminate the messy requirement of the employee having to suffer an unpredictable accident, as our IL WC Act used to require.

To justify the determination the actions of walking on an ordinary staircase is an “accident,” the appellate ruling cites the Commission decision which we feel laughingly claims the worker was continually “forced” to use the stairway as part of his work and breaks. From that nomenclature, it appears the severe and demanding taskmasters/slave-drivers at the Village of Villa Park compelled, coerced and drove this otherwise innocent man to actually traverse the stairs as much as 6 times per day, both for his personal comfort and to complete his work-related activities. We don’t feel climbing stairs maybe as much as 10-15 minutes in a 480-minute or 8-hour work shift is a whole lot of stair-climbing. There are lots and lots of breaks from stair-climbing in between. That said, the appellate majority found the frequency with which the employee was “required” to traverse stairs was an increased risk compared to general public. In our view, climbing stairs six times every eight hours would only be an increased risk as compared to people who live in homes that don’t have stairs. We have literally no idea how to litigate or defend the level of supposed frequency of stair climbing or walking or normal actions of daily life while at work. Would this claim have been denied if the worker only walked on stairs twice a shift and not six times??

Causation-Schmausation??

As we have advised our readers and clients, the main issue the legislative leaders for IL business are trumpeting is making causation in Illinois workers’ comp clearer and potentially stricter. As we have advised IL State Rep. Dwight Kay and outgoing IL State Chamber President Doug Whitley, we don’t feel you can change causation unless and until the jurists considering the issue will follow the statutory intent. This ruling basically ends any concept of “causation” because the Court’s majority isn’t truly requiring an accidental injury—unless you agree it is an “accidental injury” to walk on a safe and ordinary staircase six times in an 8-hour shift. If you add language to the IL WC Act requiring work to be the “primary cause” of the medical condition, this court will certainly rule this ordinary and occasional work task was the primary cause.

Consider Fitness for Duty Evals, Folks

The appellate ruling also points to the fact the employer knew the employee had suffered a non-work-related injury to the knee and still allowed him to return to work. This brings up a constant problem for IL and U.S. employers—when do you allow such a worker back into your workforce? This ruling clearly outlines it may be the employer’s responsibility if the off-work injured worker’s problems appear at all while they are at work. In our view, court decisions such as this enhance the need for FDE’s or Fitness for Duty Evaluations. You may want to consider Accelerated Rehabilitation or Athletico for such evaluations if you are faced with this issue moving forward.

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

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Synopsis: IL WC Participants Need to Adjust to No-Hand-Held-Cellphones-To-The-Ear-While-Driving.

Editor’s comment: We are sure the new IL state law banning the use of hand-held cellphones while driving a car or other vehicle raises problems for claims handlers, brokers, attorneys on both sides and our hearing officers, all of whom rely on their phones to keep in touch for business and family. It is our understanding there is no problem using cellphones while driving but you can’t put them to your ear.

Should you or your firm buy a hands-free device to allow legal cellphone use by your drivers?

Our firm is going to offer it for our defense team. It simply makes good common sense. We also are concerned to the extent our lawyers are officers of the courts of this state and can’t break the law. We are encouraging all of our readers to get hands-free devices and use them regularly.

Is your company liable if an employee using work-provided equipment causes an accident?

In our view, the liability comes from having an employee working while driving—use of the phone is secondary. It is also going to be challenging to prove the phone was being used in the proscribed fashion. You can’t simply look up phone records to confirm there was a call ongoing, as that will not provide any information about how the phone was being held.

The new law went into effect Jan. 1, 2014 making Illinois the 12th state to prohibit drivers from using hand-held phones. Chicago, Winnetka, Evanston and other towns already had banned use of hand-held phones by drivers. The law creates a maximum $75 fine for a first offense of using a hand-held phone while driving. Doing so in construction and school zones in Illinois was already illegal, as is texting while driving. Please note the law creates an exception for emergency calls.

We appreciate your thoughts and comments.

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Synopsis: IL WC Commission’s 2014 Medical Fee Schedule Posted and Combines with the October 2013 WCRI Study to Confirm Solid Savings for IL Employers.

Editor’s comment: The 2014 Illinois Workers’ Compensation Medical Fee Schedule rates, increased 1.52% as of January 1, 2014. They are online at https://iwcc.ingenix.com/IWCC.asp

The Commission asserts if the Illinois Medical Fee Schedule had tracked medical inflation, rates would be 30% higher than in 2006; instead, rates are 7% lower than 2006.

Section 8.2(a) of the Illinois Workers' Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

The defense team at KCB&A considers this another instance where legislative reforms are bringing our WC costs into line or making them lower than our sister states.

October 2013 WCRI Study Confirms Similar Savings for Your Company in WC Medical Costs

The costs of medical care to treat injured workers in Illinois are declining, the result of regulatory change enacted in 2011, according to a study by the Workers Compensation Research Institute (WCRI). The report, Benchmarks for Illinois, CompScope™ 14th Edition, finds medical payments per claim, for claims with more than 7 days of lost time, decreased five percent in 2011. The study reports the decline likely reflected the early impact of the 30 percent reduction in fee schedule rates for medical services.  

In particular, prices paid for professional services to physicians, physical/occupational therapists, and chiropractors were directly affected by the reduction in the fee schedule rates, declining 24 percent between 2010 and 2012. Prices paid for all types of services fell in Illinois, including office visits, major surgery, physical medicine, pain management injections, and minor radiology, according to the study. The study also noted medical cost containment expenses per claim, such as the costs of bill review, case management, and utilization review, rose moderately at five percent in 2011 after little change in the prior year.

The 2011 reforms also focused on some of the large cost drivers behind wage replacement payments—indemnity benefits—particularly the duration of temporary disability, by setting limits on the duration of benefits for carpal tunnel injuries and wage differential benefits.  

In the years prior to the enactment of the reforms, the study found the duration of temporary disability rose rapidly in Illinois, from 16 weeks in 2006 to 21 weeks in 2009, propelling growth in indemnity benefits per claim. Future analysis will determine whether the reforms achieved the intended results.  

WCRI also reported that medical-legal expenses per claim grew much faster in Illinois than in most of the other states in the 16-state study, likely because Illinois does not regulate payments for independent medical examinations, which were used frequently prior to 2011 as part of the utilization review process.

Click on the following link to purchase this study: http://www.wcrinet.org/studies/public/books/BMcscope_multi14_IL_book.html.

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

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.

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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?

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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.