3-10-14; Just When You Thought It Was Safe to Settle--Interest on Medical Bills??; Never Sign Settlement Contracts to Owe "After-Discovered" Medical; New Mega-Study Finds CTS Not Related to...

Synopsis: Just When You Thought It Was Safe to Settle! Illinois Medical Providers Filing Post-Settlement Suits for Statutory Interest on Unpaid Medical Bills.

Editor’s Comment: There is a new “trend” out there we feel the entire IL WC community needs to be aware of and adjust claims handling as appropriate. Our research has identified several recent Cook County Circuit Court claims filed by a prominent workers’ compensation medical provider against employers, TPA’s and their insurance providers for payment of medical bills to include recovery of 1% monthly statutory interest on unpaid medical bills pursuant to Section 8.2(d)(3) of the Act. If you aren’t sure, the relevant language from Section 8.2(d)(3) of the IL WC Act states:

(d) When a patient notifies a provider that the treatment, procedure, or service being sought is for a work-related illness or injury and furnishes the provider the name and address of the responsible employer, the provider shall bill the employer directly. The employer shall make payment and providers shall submit bills and records in accordance with the provisions of this Section. (3) In the case of nonpayment to a provider within 30 days of receipt of the bill which contained substantially all of the required data elements necessary to adjudicate the bill or nonpayment to a provider of a portion of such a bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section, the bill, or portion of the bill, shall incur interest at a rate of 1% per month payable to the provider. Any required interest payments shall be made within 30 days after payment.

Please note the statutory language requires the medical billing be sent to the “employer.” We don’t know how medical bills being misdirected to the employee or their attorney would/should be handled. Please further note the medical billing must include “substantially all of the required data elements necessary to adjudicate the bill or nonpayment…” We are sure lots and lots of medical billing is sent without “required data elements.”

However, if the work-related medical bills are owed and required data elements are forwarded to the TPA/Insurer, the 1% monthly or 12% annual interest rate on medical billing starts. This significant added statutory interest would be owed to all doctors, hospitals and other caregivers providing work-related treatment. We are asked by many of our clients, readers and others if the interest is simple or compounded—the statute cited above doesn’t indicate it is compound interest so our advice is to treat it as simple interest which starts on the date you have “required data elements.”

In our view, at the time of settling IL WC claims, the rank and file of Illinois defense lawyers and insurance carrier/TPA claims adjusters aren’t aware of or simply don’t address this significant statutory interest issue. We are sure some insurance carriers and TPAs let medical bills sit for a variety of reasons—some of the bills await processing and payment at the end of the claim. That may not be a solid claims concept any more. Please remember if you have a properly coded surgical bill for $100,000 that isn’t paid for 20 months while the litigation is pending before the IWCC, an additional $20,000 is owed under IL law. Due to that significant added charge, we are now concerned many parties may be taking a short-sighted view of the settlement process. Standard lump sum settlement language about medical billing simply indicates “bills will be paid by Respondent” for medical care known to the insurance carrier or TPA. However, the language in disputed claims may also indicate Petitioner assumes further liability for all bills and any unpaid statements for work-related medical care.

Statutory Interest Appears to Start When “Required Data Elements” Are Received by the Insurance Carrier/TPA

This litigation we found and highlight below is asserting if the insurance carrier or TPA hasn’t paid the bills but has the “required data elements” needed to calculate what is owed over the life of the claim, they may owe statutory interest from the date of receipt of the data elements. On the other side of the bar, if Petitioner assumes liability for medical bills and they received the required data elements as part of billing, they may owe the statutory interest. In our view, whoever agrees to pay such bills at the time of settlement, you implicitly or explicitly agree to also pay statutory interest under the law.

If you don’t want to pay statutory interest on WC medical bills you are first processing after a settlement, you probably have to document that you don’t have the required data elements or you have to outline what you may owe in the lump sum settlement documentation. We would love the thoughts of any veteran claims handlers or risk managers about how to best address this situation and insure settled claims stay settled. We do feel there may be legal malpractice concerns for Petitioner/Plaintiff attorneys in some situations, if their clients are sued by aggressive medical providers who learn the worker took on liability for all medical bills but didn’t insure statutory interest was paid.

What Happened to the Best Thing About IL WC—Final Closure of Claims at Settlement?

From discussions with claims handlers and risk managers across the U.S., one thing everyone likes about our challenging WC system is closure of medical rights at the time of lump sum settlement contract approval. This new trend, if it survives motions to dismiss in the Circuit Courts, may reverse that concept. It will be an very odd thing to pay the amounts due for TTD/PPD and then see payment of medical bills after settlement erupt into even more litigation over statutory interest.

Please also note one of the most irritating aspects of our IL WC system to claims managers across our country—the status calls and setting and resetting of trial dates—might change if there are significant medical bills outstanding and no one can tell if the

y are due now or going to be due. If there is a 1% per month charge while the litigation is pending, Respondent attorneys will have another tool to fight for firm hearing dates and stop the other side from stalling. Respondent attorneys also have to be sensitive about transmitting unpaid medical bills to their clients for processing to avoid interest charges.

An interesting side note to all of this is we have three adjunct professors of law at KCB&A. From an academic perspective, we don’t feel an IL WC medical provider can or should be able to directly sue an insurance carrier or TPA—the IL WC Act doesn’t provide for such litigation. The rights and interests of a medical provider flow through the patient—their rights should be against only their patient. Obviously Plaintiff counsel for this aggressive medical provider disagrees and they are proceeding with lots of litigation that we feel our IL WC claims community should be aware of. Each of the 8.2(d)(3) claims we cite is supported by an Exhibit attached to each claim. It is Company Bulletin 2012-9 from the Illinois Department of Insurance notifying all insurance companies to maintain compliance with the statutory interest provision in 8.2(d)(3) dated December 13, 2012. It reminds companies of the June 28, 2011 Amendments to the IL WC Act.

Current Cook County Litigation Against Employers/Insurance Carriers/TPA’s

Defendant TPA:

The claim was heard by the Arbitrator, IWCC and the Cook County Circuit Court eventually decided the underlying WC case. Medical bills accrued and were timely submitted between 2010 and 2012. These bills were not paid until 2013 after the case went from arbitration to the Commission and finally to the Circuit Court. Originally, the Arbitrator awarded a lump sum. The medical provider is suing the TPA for the 1% per month statutory interest accrued under three counts

1)    breach of contract implied in fact,

2)    breach of contract implied in law, and

3)    breach of statutory duty.

Their argument is

1)    A relationship existed between the parties such that some payments were made and

2)    The medical provider was directed to send the bills to the TPA that implies a contract in fact;

3)    This same set of facts implies a contract by law, and

4)    Under 8.2 of the Act there is a statutory duty to pay the interest. The medical provider asserts it is “damaged as result of failure to pay interest.”

Originally, the Arbitrator awarded total medical bills per fee schedule. Then, the Commission changed the award to omit a few thousand dollars in travel charges. – “It is further ordered by the Commission that Respondent pay to Petitioner the sum of $270,857.60 for medical expenses.” The Circuit Court upheld the Commission’s ruling.

This litigation is ongoing. FYI, the annual cost for 12% interest on the medical award of $270,857.60 is $32,502.91.

Defendant Employer:

This underlying WC claim was settled by lump sum settlement contract. Count I alleges breach of contract claiming the medical provider is an intended third party beneficiary of the contract that has not received payment for some of its bills. Nowhere does the contract name the medical provider or accept employer liability of any further medical bills. In pertinent part, the contract reads, “This settlement included liability for TTD and all medical, surgical, and hospital expenses incurred or to be incurred or allegedly resulting from the said accidental injury for all of which the Petitioner expressly assumes responsibility.” The second and third counts allege breach of statutory duty for interest on paid bills and on unpaid bills. It reproduces the argument in the first reported claim above asserting Section 8.2(d)(3) creates a statutory duty for the 1% interest to be paid.

In our view, the italicized language above would make Petitioner responsible for statutory interest, as they assumed liability for such payments. We are unsure how the employer could be a party to such a claim. This case was transferred to another venue, outside Cook County, and continued as of January 21, 2014.

Defendant Insurance Carrier:

This underlying IL WC claim is also based upon a settlement agreement and prays accrued interest and outstanding medical bills. The pertinent part of this agreement reads, “Respondent offers and Petitioner accepts … in full, final and complete settlement of this case; Respondent is hereby released, acquitted and discharged from any and all liability under The Worker’s Compensation Act … in any way arising out of the accidental occurrence.” The first count is the same as above with an addition after the claim of intended third party beneficiary. This addition reads, “Moreover, Plaintiffs are the assignees of any and all right to compensation for treatment which [Petitioner] holds as an employee, under the Act and otherwise.” The second count is breach of contract implied by fact and follows the argument laid out in the first analysis above. The third count is a breach of statutory duty again under 8.2(d)(3).

Again, we see no basis for a claim against the insurance carrier based on the simple italicized language above. This case is ongoing.

Defendant Insurance Carrier:

This underlying WC case is also based on a settlement agreement and prays accrued interest and outstanding medical bills. Unlike the claims above, where the settlement contracts read “has not paid all medical bills,” this contract reads “has paid all medical bills.” Its rider states, “The Respondent agrees to medical bills pursuant to Section 8(a) of the Act through date of settlement contract approval.” The complaint again alleges breach of contract claiming the health care provider is an intended third party beneficiary of the Settlement Contract. It further alleges the breach of statutory duty pursuant to 8.2(d)(3) for unpaid interest.

This case was recently dismissed by stipulation or agreement.

Defendant Insurance Carrier:

Again, based on a settlement contract, this claim includes all four of the above counts: 1) breach of statutory duty for the interest, 2) breach of contract implied by law for interest due on paid bills, 3) breach of contract for unpaid services, again asserting the medical provider is an intended third party beneficiary to the Settlement Contract, and further the contract reads all bills submitted prior to the approval of the contract which of course all bills had been timely submitted, and 4) breach of contract implied by fact.

This contract reads, “Respondent will pay all necessary and related medical expenses …that have been submitted to Respondent prior to contract approval and that contain all the required data elements necessary ..” This case is ongoing.

Defendant Insurance Carrier:

Once more based on a settlement contract, this claim prays accrued interest and outstanding medical bills through claims of breach of contract based on the settlement contract itself, breach of contract implied by fact based on the relationship between the parties such that some payments were made and the medical provider was directed to send the bills to insurance carrier, and breach of statutory duty under 8.2(d)(3). This case is ongoing.

What These Claims Mean for Our Clients, Readers and Prospective Clients

If you agree to pay reasonable and related medical expenses, confirm it in writing and pay the bills as soon as they are provided to you with the required data elements (e.g., bills on HCFA 1500’s, CPT codes, etc.). If the providers fail to provide you with the required data elements, advise them in writing and document your file about the request—this documentation should block statutory interest. Additionally, when closing claim files via settlement, your lump sum settlement contract language must be clear and succinct. Consider including a list of bills you agree to pay directly as part of the contract and add language limiting your liability for statutory interest. If you don’t have required data elements, consider confirming that fact, as part of the settlement.

Just as important, confirm Petitioner will be liable for any bills not specifically mentioned in the contract. These are just a few simple but useful suggestions for avoiding any surprising post contract or post payment claims.

If you have any specific questions, send a reply. We appreciate your thoughts and comments.

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Synopsis: Part II on Handling Medical Bills in an IL WC Settlement—Never, Ever Agree to Pay “After-Discovered” Medical Bills.

Editor’s Comment: Our goal in settling IL WC claims is to get all accepted medical care paid to insure an innocent Petitioner isn’t left stuck holding the bag because work-related medical billing was in transit or under consideration by the insurance carrier/TPA or self-insured employer. We recently were asked about language included in draft lump sum settlement contracts indicating the employer/insurance carrier would pay any and all medical bills, even if they weren’t aware of such medical care or billing at the time of settlement. The attorneys at KCB&A would never sign WC settlement contracts with the “after-discovered” medical bill language.

We urge all our defense readers and clients not to do so and here is why. In our view, you should only agree to pay bills for medical facilities of which you are aware or for care you approved/certified prior to contract approval. We have had several Petitioner/Plaintiff attorneys intentionally hold back bills because they knew it would block settlement. In handling a recent claim, one well-known Petitioner/Plaintiff attorney held the bills back and waited until after the contracts were drafted to then tell us there was $45K in medical care neither we, as defense counsel, or our client ever knew about.

The settlement in question was for a relatively reasonable amount of money for PPD—let’s say it was $10,000. In handling a settlement of that size, counsel knew if they tossed $45K in unpaid bills on the table, we might nix the settlement due to the highly increased and surprise amount. Please note if the client acting without counsel or if we, as defense counsel had signed settlement contracts with “after-discovered” language requiring payment of any and all medical bills, we would have owed the $10,000 and the $45,000 in bills if that was the amount they would code at under the IL WC Medical Fee Schedule. We are certain our client hadn’t reserved for that amount and everyone would have been furious to learn we had been taken advantage of.

You can also ask the rhetorical question--what if there were $145K in unpaid and unknown bills? What if there were $245K? In our view, you want your files to close when you settle them. As we indicate in the article above, one of the best things about IL WC law and practice is finality at the time of settlements to include closure of medical rights. If you sign lump sum contracts with “after-discovered” language, you haven’t closed anything. Years later a claimant could first come forward with unpaid bills that you knew nothing about and seek payment and/or a judgment under Section19(g) against you.

If you don’t think there are Petitioner attorneys out there who might ask you to blindly agree to pay medical bills at whatever amount, trust us, they are everywhere. The best approach is to contact KCB&A about your settlement contracts to insure they are functional, match the statute and protect you by effectively and forever close your claims.

We appreciate your thoughts and comments.

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Synopsis: Another International “Mega-Study” Confirms No Scientific Association Between Carpal Tunnel Syndrome and Typing/Mousing or other Computer Use

Editor’s Comment: We see claim after claim asserting keyboarding, typing, mouse clicking and mouse dragging cause or contribute to carpal tunnel syndrome or CTS. At one point, over half of the workers at an Illinois correctional institution were making CTS claims (we note those claims arose from supposedly using keys to open cell doors and driving supposedly shaking steering wheels). Both the Arbitrator adjudicating such claims and the state adjuster at CMS got CTS settlements. At one point in IL WC, it seemed like CTS claims were indefensible and a source of major awards/settlements. It is our view that in the last three-four years, the CTS trend has turned back dramatically in Illinois.

We feel everyone with a sore wrist always points to their keyboard or mouse as the basis for the claim. We have seen study after study on the topic and lots of debate. As we have advised Arbitrators/Commissioners in Illinois WC and Hearing Members in Indiana WC, scientific data developed across the globe to date does not show a scientific association between the two. Our concern is the lack of a scientific link doesn’t stop WC rulings that rely wholly on complaints of the claimants but have no basis in science, research or medicine. Please remember if you have CTS and suffer from its symptoms, you are going to have it at work—the appearance of symptoms doesn’t mean they were caused or “aggravated” by work.

A group of French researchers has completed what is called a meta-analysis of various epidemiological studies conducted on this subject over a twenty-year period. A “meta-analysis” uses a statistical approach to combine the results from multiple research studies over a long period of time and from many sources. The results and analysis were published in the February 2014 edition of Journal of Occupational and Environmental Medicine: Is Carpal Tunnel Syndrome Related to Work Exposure at Work? A Review and Meta-Analysis. In short, the review and meta-analysis found, “it was not possible to show an association between computer use and CTS.”

Four databases (PubMed, Embase, Web of Science and the French Public Health Database) were searched for relevant studies conducted during the 1992-2012 timeframe. This originally yielded 77 different research studies, a number which was further reduced by including only those studies which

a)    Used a control group;

b)    Confirmed a CTS diagnosis by electrophysiological investigation or hand surgeons; and

c)    Assessed the association between computer use and CTS with blind-reviewing.

Using these parameters, the final tally of studies included in the meta-review totaled six. There were three scientific studies from the United States, 1 from Denmark, 1 from Sweden and 1 from Taiwan. The meta-analysis reviewed all the raw data collected by these studies. This included the type of computer use, the number of hours worked and the ergonomic conditions at work.

Based on the data in the reviewed studies, the meta-analysis reached a scientific conclusion there was no evidence of a scientific association between computer work and CTS.

Various studies have found complaints of finger, hand and arm pain are common among computer users. Does this signal a contradiction in findings? The meta-analysis suggests several reasons, one of the most prominent being the complexity involved in evaluating computer work exposure. For example, some of the data reviewed indicated that when evaluating finger, wrist and forearm positions, there may be a difference between keyboard use and typing and mouse use. Besides differences in computer usage mechanics, variables in hours worked and ergonomic conditions may cause variations. For example, one study reviewed indicated symptoms increased when working more than 12 hours per day.

As to ergonomic conditions, while these “may be associated with an increased CTS risk, requiring intervention” the risk is “not sufficient to claim occupational compensation for computer use.” Moreover, while the meta-analysis suggests the possibility of an increased CTS risk for prolonged mouse use, coupled with ergonomic “errors”, it does not state how much mouse use is considered “prolonged” nor identify the perceived ergonomic “errors”.

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

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Synopsis: Eight Days to the IL Gubernatorial Primary—We Join with the Chicago Tribune to Endorse Bruce Rauner in the Illinois Republican Primary.

Editor’s comment: Our goal as a news source is to remain bipartisan. Therefore, if you are a Democrat, vote for incumbent Governor Pat Quinn in the Democratic side of the March 18, 2014 primary.

On the Republican side, we were happy to see the Chicago Tribune endorse Mr. Rauner. We join with them in doing so. Please note a few fairly important things:

·         Illinois taxes and highway tolls have been recently raised to record levels;

·         Our state’s unemployment is wildly high—people, jobs and businesses are leaving;

·         Our state pension debt is over $100B—the soaring debt won’t result in “bankruptcy” as state governments can’t seek bankruptcy protection but it is certain to cause more business-busting taxes and tolls;

·         Our state is effectively “bankrupt” as we haven’t timely paid bills in years and are always several billion behind;

·         IL Senate President John Cullerton has openly confirmed the only path their administration has to bring government back into economic shape is to dramatically raise taxes and tolls even further;

·         Illinois has 88 state agencies, many of which are admittedly redundant and duplicative; actually most of IL government is redundant/duplicative, as IL politicians like to control lots of jobs whether we need them or not;

·         There are literally hundreds of ways our state government could provide the same or better services for less money but would require strong management we aren’t getting—if you want some of our thoughts on simple cost-cutting measures, send a reply.

Bruce Rauner is an amazing and successful business person.

·         He is the first gubernatorial candidate in years who can’t be bribed and doesn’t owe any group political “tokens” or pay-backs;

·         He will pick the best candidates for important state positions and work to select the best vendors to supply state agencies;

·         He will make strong decisions to save taxpayers money and cut waste and government redundancy.

If you like the status quo, vote for one of the other Republicans who all have been in our dysfunctional state government for years without any answers or plan. If you think we need a change, vote for Bruce Rauner today or at your polling place on March 18, 2014.

3-3-14; Adjusting/Managing an IL WC Death Claim; Kudos to IWCC Chairman Latz for Presenting/Teaching; The Election is Near, the Primary Election is Here and much more

Synopsis: Adjusting and Managing an IL WC Death Claim.

Editor’s comment: If there ever is a claim to ask a KCB&A expert for free legal/claims advice, this would be the time. This standing offer is open to attorneys on both sides, adjusters, risk managers and IWCC employees. In dealing with an IL WC death claim, your biggest problem may be the details and minutiae. Hopefully, your organization does not adjust a high number of death claims, making it critical to quickly acquire the needed rules and guidelines for such claims when the occasional fatality comes across your desk. Guidance in the legislation is in Section 7 of the IL WC Act. If you aren’t crystal-clear about anything related to an IL WC death claim, send an email to ekeefe@keefe-law.com on a 24/7/365 basis and we will get you the needed answers. There are some nuances that make handling such claims a challenge. In our view, you do not want to get death benefits wrong and be accused of being unfair to a widow/widower or orphaned children.

As a caveat, please remember there are two aspects of such claims that are different from normal injuries.

      First, if someone passes, you almost always have to report to and deal with OSHA. Be sure to investigate, investigate and investigate to be able to fully document everything for our federal investigators.

      Second, when there is a death in the workplace, you may want to assume everyone around the untimely event of the worker’s passing may also make a workers’ compensation claim for the stress involved in the passing. You may want to offer grief counseling to minimize or assist with such concerns.

      Third, there are very high and moderately unusual maximum/minimum weekly rates involved in IL WC death claims. We will explain that in more detail below.

These are the steps to follow to complete the investigation and set up the claim protocol.

      1. Determine compensability

Most of the time, if someone passes in the workplace, you may be looking at a compensable occurrence. If you, as an adjuster, accept the claim, legal fees may be minimal based on the limitations in the IL WC Act. If you controvert the claim and lose, legal fees can be a lot of money and you could also face penalties/fees. Noncompensable death claims typically involve suicide, unforeseen criminal acts, heart attacks (in some settings), illegal drug use or intoxication. If an autopsy was performed, the report should be obtained. Other factors which may affect compensability include the previous health of decedent and complaints prior to death which bear on the cause of death. Remember that widows and orphans make sympathetic witnesses, therefore make sure you document your investigation thoroughly.  

      2. Confirm the fact of death for your complete file

Obtain the death certificate. Police reports and newspaper articles may be of assistance. Be alert for the possibility of fraudulent or faked death claims. A faked death is a case in which an individual leaves evidence to suggest he or she is dead in order to mislead others. This is done for a variety of reasons, such as to fraudulently collect insurance money or to avoid capture by law enforcement for some other crime. People who fake their own deaths sometimes do so by pretend drownings, because it provides a plausible reason for the absence of a body. We are aware of some countries where they will not provide death benefits if the body is not found because the problem with faked deaths was so prevalent.

      3. Locate/identify one valid spouse and any and all dependents

A good practice to follow is to issue a questionnaire to all known relatives or take statements to determine not only their status as dependents but also to obtain information regarding other potential dependents. Issues relating to the spouse may arise. First, there may be an issue as to whether a valid marriage existed between the spouse and the decedent. On some occasions, multiple individuals may claim to be married to decedent. Common law marriages are not recognized in Illinois but Illinois might recognize a common law marriage from another state.

Obtaining an official marriage certificate(s) is a must. Don’t rely on religious certificates of marriage. A flipside of this issue is whether a valid divorce was entered. Therefore, obtain divorce papers for the deceased and former spouse.

Next, obtain the official birth certificates of all minor children. There may be children not living with the deceased who are still entitled to benefits, as well as adopted and unborn children who exist at the time of death. Birth certificates for all individuals claiming to be children are critical.

For Plaintiff/Petitioner attorneys, remember you can’t bring the claim in the name of Decedent and such a filing is arguably a nullity. Bring the claim in the name of the surviving spouse. Similarly, children aren’t actually parties to the litigation—they take under the name of their parent, guardian or next friend.

4. Determine the death benefit—remember the high minimum and maximum death rates in Illinois

Section 8(b) of the Act seems to indicate workers’ compensation benefits are not to exceed the average weekly wage. However, the weekly benefit in death claims is calculated like the TTD benefit (66-2/3% of the employee’s average weekly wage) subject to the maximum TTD benefit and a minimum of one-half the statewide average wage.

Paragraph 4.1 of section 8(b) indicates the minimum weekly compensation rate for death cases must not be less than 50% of the state average weekly wage. Thus, the minimum changes as frequently as the maximum TTD rate changes. Total compensation payable for death cases is a minimum of $500,000 or 25 years of death benefits whichever is greater. Please note the $500,000 number is a statutory red herring, as the minimum compensation for a compensable death claim in IL is $651,742.00. The maximum is $1,737,983.00.

For the widow(er), Section 7 states the death benefit is payable during the life of the widow(er) until death. If they remarry, and have no children, then they are entitled to a lump sum benefit equal to 2 years of compensation benefits. This lump sum extinguishes their further rights.

If the widow(er) has children from the decedent, then even if the widow(er) remarries, benefits are payable until the youngest dependent child reaches the age of 18 or until the widow(er) dies, whichever comes later. A child under 18 at the time of death is eligible to receive benefits for a period of not less than 6 years, and if a child is enrolled as a full-time student, payments continue until the child turns 25. If a child is physically or mentally incapacitated (incapable of engaging in regular and substantial gainful employment), payments must continue for the duration of the incapacity.

Children eligible to receive benefits under paragraph (a) are defined as children that the deceased left surviving, including a posthumous child, a legally adopted child, a child whom the deceased was legally obligated to support or a child to whom deceased stood in loco parentis. The Illinois Supreme Court has also held that a moral duty to provide support is recognized. Nonetheless, keep in mind that the total compensation payable for the death benefit is 25 years of benefits, if the surviving spouse survives that long. Parents of the decedent may receive benefits only if they are totally dependent upon the earnings of the decedent. Grandparents, grandchildren or collateral heirs must establish dependency upon the decedent’s earnings to the extent of 50% or more of total dependency to receive 5 years of benefits.

      5. What if there is no spouse or children?

A more complex issue arises when the decedent leaves no surviving widow(er) or children. In that event, Section 7 provides for a descending order or list of beneficiaries.

Dependency must exist at the time of the injury. L.M.&O Motor Co. v. Industrial Commission. It is not necessary to show claimant would have been without means of support; the test with regard to contributions of dependency looks to whether contributions were relied upon by the applicant for their means of living and whether applicant was substantially supported by decedent at the time of the latter’s death. Roseberry v. Industrial Commission.If no widow(er), children or totally dependent parents exist then benefits go to children who would not otherwise take under paragraph Section 7(a) and are in any manner dependent or whose parents are partially dependent upon the earnings of the decedent. These individuals are entitled to 8 years of benefits. Interpretations of clauses of the Act like “in any manner dependent” or “partially dependent” are factual questions and therefore you may need a hearing before the Commission to determine the apportionment. If you have no surviving spouse, children or other dependent relatives, the burial expense may be all that is due.

      6. What do you do if a beneficiary dies or later becomes ineligible?

Upon the death or ineligibility of any one member of the class of dependents entitled to compensation, the remaining members of the class succeed to the balance of the award and the employer is liable to pay the full amount of the award as long as there are any members of the class entitled to it. Beckemeyer Coal Co. v. Industrial Commission.

      7. Burial expense

The IL WC burial expense is $8,000. The employer is also obligated for TTD and medical expenses during the life of the decedent, if the latter lived for a period following the accident causing death.

      8. Attorney’s fees

In an undisputed death claim, attorneys’ fees are only $100.00 by IL law. In a disputed death claim, fees are still limited to 20% of 7 years of benefits unless otherwise approved by the Commission. Death benefits provide some of the most complex legal issues and calculations in Illinois workers’ compensation. Due to the high reserves and potential payout, it is critical to know and understand the rules and details with regard to such claims to be confident that you are accurately paying benefits.

There can be lots of other issues. Again, if you have a death claim, we are happy to help; just send an email. We appreciate your thoughts and comments.

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Synopsis: Great thoughts from our IWCC Chairman for the IL WC Community.

Editor’s comment: We were proud to hear Chairman Michael Latz spoke in an open forum last week in providing what was called the “Chairman’s Update” at the State of Illinois Center. We hope this solid administrator and anyone that may succeed him in the years to come is willing to step before an audience and convey their best thoughts and comments about important legal issues and how the current Commission leadership is dealing with them.

Here is our report on the many issues he covered:

1.    It has been three years since the 2011 Amendments to the IL WC Act. Chairman Latz pointed out advisory rates have dropped 13.3% in that time along with a 5.8% reduction that just took place on January 1. 2014. Everyone hopes the major IL WC insurers have matching reductions in premium dollars.

2.    While we aren’t big fans of the scientific or practical value of the “advisory rate” thing, there is no question Chairman Latz has accurately pointed out WCRI research documents medical prices/reimbursements in Illinois have dropped 24% in the past three years. This savings has to be around $1B for Illinois business, as medical costs are typically the highest overall cost in any workers’ compensation claim. The current administration gets kudos for their hard work in making these solid changes to our law.

3.    Chairman Latz indicated there are three pending bills of interest to IL employers

a.    HB 4189 sponsored by Rep. Dwight Kay that allows health care providers to file liens on WC claims/awards to insure payment;

b.    HB 5792 which requires employers to file a “statement” regarding termination of an employee covered under the IL WC Act;

c.    HB 3470 that covers controversial issues such as causation, AWW, the Interstate Scaffolding“you-owe-TTD-if-you-fire-a-miscreant-on-light-duty” ruling and the Will County Forest Preserve“shoulder-is-body-as-a-whole” ruling. (The comments in quotes are not thoughts from Chairman Latz but your opinionated and sometimes biased editor).

4.    Chairman Latz addressed the interesting question of whether there is an attorney fee cap on wage loss differential benefits based upon the language of Section 16 of the IL WC Act. The IWCC is taking the administrative position there is such a cap. As academicians, we strongly agree with their position.

5.    The question of admissibility of a proposed decision as evidence was analyzed and the Chairman indicated such documents are simply proposals and not binding on either side. Again, we strongly agree with this position.

6.    Our Chairman reviewed the Illinois Rules of Professional Conduct and Administrative Code about who may appear before a hearing officer and under what circumstances. He also discussed how everyone should comport themselves when at the Commission. We feel every Chairman should always do precisely what Chairman Latz did to emphasize the strong need for appropriate, ethical and professional behavior by all parties. We hope everyone will know and closely adhere to such rules.

7.    Finally, Chairman Latz quoted our 16th President: “Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”Abraham Lincoln, 1850.

We again salute our Chairman and hope he continues to lead in this fashion moving forward. This article was researched and written, in part, by Michael Shanahan, JD. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Concerns Raised about 12% Interest on Unpaid Medical Bills in IL WC Upon Settlement. What Do You Think is The Optimal Approach to Avoid Further Litigation?

Editor’s comment: We are further researching this issue and should have a more detailed analysis next week but we want to let the IL WC business/insurance community know of a new, rising concern about closing claims via settlement. Many IL WC Lump Sum settlement contracts leave the issue of unpaid medical bills moderately unstated. Either Petitioner takes over full liability if the matter was disputed or Respondent agrees to pay reasonable, necessary and related medical bills pursuant to the IL WC Medical Fee Schedule.

The issue that we have seen is what about statutory interest on medical bills? The recent amendments to the IL WC Act now make unpaid medical bills subject to a 1% per month interest charge. In our view, interest starts to accrue when coded bills are sent by the medical providers to the payers. Please note a medical bill of $100,000 that isn’t paid timely would add $12,000 per year in statutory interest.

We don’t want either side to get sued or see our many KCB&A hospital clients have to sue to collect what may be due. We would appreciate your thoughts and comments about how to have that issue fairly resolved at the time of a lump sum settlement.

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Synopsis: The Election is Near; the Primary Election is Here!

Editor’s comment: The March 18, 2014 Illinois statewide primary is upon us. For the Gubernatorial Primary Election, Early Voting will take place March 3 - March 15. No more excuses are needed to vote early—all you have to do is go in and vote. You need only to fill out an application at the  Early Voting site.

The biggest and most important contest to affect the workers’ comp system is the race for governor. Governor Pat Quinn is facing a primary challenge from neighborhood organizer Tio Hardiman who is a relatively unknown candidate. If Governor Quinn prevails, we assume things will then start to heat up between him and his Republican opponent as we move to the statewide election this fall. If Governor Quinn is able to win in November, we assume the administration of the IWCC will remain about the same.

On the Republican side, the leaders appear to be Bruce Rauner and Kirk Dillard. As you read this, Bruce Rauner holds a 2-to-1 lead over Mr. Dillard with no signs of slowing down. Over the weekend, we heard Evelyn Sanguinetti speak. Evelyn Sanguinetti, is the leading Republican candidate for lieutenant governor and Bruce Rauner’s running mate. Like your editor and our law partners, John Campbell and Shawn Biery, she is an adjunct professor of law at The John Marshall Law School in Chicago.

Ms. Sanguinetti is a woman, Hispanic and a Republican who’s not afraid to talk about the need for safety net programs. Her mother was a refugee from Castro’s Cuba who had her at age 15. Evelyn grew up in poverty near Miami, relying on food stamps, free school lunches and the rest. She ended up as a successful and hard-working lawyer who was appointed an Assistant Illinois Attorney General and just recently won a seat on the Wheaton City Council. She says she will go after the state-wide Hispanic vote full throttle. “Most of them are Republicans,” she says, “they just don’t know it.”

In our discussions with Ms. Sanguinetti, we are certain she will bring a strong, compassionate and fair focus for the Illinois Workers’ Compensation Commission. She wants injured workers to be treated properly and fairly. She understands the need for prompt coverage and payment of work-related medical bills. She wants Illinois employers, large and small to accommodate injured workers and return them to the workforce whenever possible.

In our view, the strongest aspect of the candidacies of Bruce Rauner and Evelyn Sanguinetti is they can’t be bribed. Unlike the last several IL governors, they owe literally nothing to special interest groups. They will do their best to find the top candidates for government agency heads, contractors, counselors and providers for IL taxpayers. We are also confident they will address the biggest problem faced by state government and IL taxpayers—we are paying and owing more money to people that used to work for government than we are paying for current state workers.

However you see things, we urge all of our readers, clients and other observers to exercise your franchise and vote.

2-24-14; You Can Fire WC Claimant for Refusal To Drug Test, Analysis by Shawn Biery, JD, MSCC; Adjusting Company Parking Lot Slip Falls in IL WC; Three Most Challenging IL WC Claims and much more

Synopsis: U.S. Employers Can Legally Fire a WC Claimant Who Refused a Required Post-accident Drug Test. Recent Federal Seventh Circuit case confirms it is a non-discriminatory termination even when related in part to a workers’ comp claim/filing. Analysis by Shawn R. Biery, JD, MSCC.

Editor’s Comment: It will be no surprise to most of our clients, readers and others we generally support discipline for violating company policies which would normally result in suspension or termination regardless of whether a WC claim is pending. This rule is effective even if the termination may in some part be due to violation of a policy which was put into play directly due to an otherwise valid WC injury and filing. In Phillips v. Continental Tire The Americas, LLC ,(C.A.7 (Ill.)) , theFederal Seventh Circuit confirmed our advice is still sound where you have a true violation of your enforced company drug-testing policy.

This Ruling Has National Impact--It Isn’t Limited to Illinois Law

Please note this is not simply an Illinois-only WC/EPLI ruling, because it comes from the U.S. Seventh Circuit Court of Appeals. This important decision is binding law on three of the four states where KCB&A provides legal defense—Illinois, Indiana and Wisconsin. If the U.S. Supreme Court doesn’t accept this ruling for further appeal and modify it, the decision will provide guidance for U.S. and federal employers in all the federal appellate circuits across the country.

Just the Facts, Ma’am; Just the Facts

Continental Tire has a tire manufacturing facility in Mt. Vernon, Illinois. Plaintiff Phillips worked there as a general trucker for twenty-two years until his discharge. The Mt. Vernon facility has a health services department and in April 2010, Phillips visited the health services department to report his fingers went numb at work and to initiate a workers' compensation claim. At the time, Continental Tire had a written substance abuse policy that required drug testing in certain situations including initiation/reporting of a workers' compensation claim. That company policy provided “[r]efusal to submit to testing will be cause for immediate suspension pending termination.” Accordingly, any employee who sought to initiate a workers' compensation claim was required to submit to drug testing or be immediately suspended pending termination, regardless of whether he received treatment or services at the health services department.

Plaintiff Phillips was informed he had to submit to a drug test before he could initiate a workers' compensation claim. There is no dispute he was shown the Continental Tire drug testing policy. He also was advised if he didn't take the drug test, his employment would be terminated. Nonetheless, he refused to take the drug test because he didn't think that it should be a necessary consequence of filing a workers' compensation claim. Phillips was terminated from his employment with Continental Tire for refusing to submit to drug testing upon his initiation of a workers' compensation claim per their well-settled and enforced policy.

Phillips was well aware of the reason for termination, however he filed a retaliatory discharge claim. However, when asked at his deposition why Continental Tire terminated him, Phillips stated, “Because I didn't submit to a drug test.” And when asked if he was contending Continental Tire fired him because he filed a workers' compensation claim, he answered, “They fired me because I didn't submit to a drug test.” Phillips agreed he had no evidence or information there was a different reason for his discharge. It was his understanding he would still be employed at Continental Tire if he had taken the drug test. Even though he refused to submit to the test, Phillips did file a workers' compensation claim and Continental Tire’s counsel advised the court Phillips eventually received workers' compensation benefits. We checked online and it appears the underlying 2010 WC claim for “hand numbness” was eventually denied by the Arbitrator and Commission in 2013—it is currently pending on remand.

Legal Standards for Retaliatory Discharge Claims

It is clear Illinois law recognizes a cause of action for retaliatory discharge where an employee is terminated because of his actual or anticipated exercise of workers' compensation rights. To establish a retaliatory discharge claim, a plaintiff must prove:

(1)  They were an employee before the injury;

(2)  They exercised a right granted by the Workers' Compensation Act; and

(3)  They were discharged and

(4)  The discharge was causally related to pursuit of a claim under the Workers' Compensation Act.

Obviously in this claim, the only issue is whether he was discharged due to the pursuit of his WC claim. It doesn’t appear to be a difficult answer since there was a clear company policy. The Court agreed and noted proving causation “requires more than a discharge in connection with filing a claim.” Marin v. Am. Meat Packing Co. (Ill.App.Ct.1990).

The undisputed facts—including the parties' stipulation and Phillips' own deposition testimony—established Continental Tire terminated Phillips because he refused to take a drug test upon initiation of a workers' compensation claim as required by Continental Tire policy. Other facts included:

·         Phillips admitted he had no evidence or other information Continental Tire had any other reason for discharging him.

·         Continental Tire consistently has applied its drug testing policy and has discharged other employees who have refused to submit to the drug test pursuant to the policy.

·         Other Continental Tire employees have initiated workers' compensation claims and have not been discharged.

·         Phillips had filed a workers' compensation claim in the past and was not discharged.

·         Phillips agreed if he had taken the drug test, he would still be employed at Continental Tire.

Phillips argued the case of Clark v. Owens-Brockway Glass Container, Inc. (Ill.App.Ct.1998) was applicable due to the language which states: “An employer may discharge an injured employee who has filed a workers' compensation claim as long as the reason for the discharge is wholly unrelated to the employee's claim for benefits under the Workers' Compensation Act.”  The Seventh Circuit noted numerous instances where it had been determined “but-for causation” was rejected without facts to establish retaliatory discharge. They also noted Clark was unhelpful to Phillips for another big reason: the employer in that case discharged the employee because it thought her claim for benefits was exaggerated and the employer admitted the discharge was directly for filing the workers' compensation claim.

Phillips also argued the U.S. District Court erred in relying on a provision of the Illinois Workers' Compensation Act, 820 ILCS 305/11, which was not in effect at the time of his injury. This part of the statute is generally known as the “Intoxication provision” which establishes a rebuttable presumption the employee was intoxicated and the intoxication was the proximate cause of the employee's injury if the employee refuses to submit to drug or alcohol testing. The Seventh Circuit rejected this argument as well because, while the Court referred to this provision, its grant of summary judgment to Continental Tire was not premised upon it.

Finally, Phillips presented an argument the drug testing policy discourages employees from filing workers' compensation claims—the court simply referred to the provision in the IL WC Act as support for its conclusion there were valid reasons for requiring drug testing upon initiation of a workers' compensation claim and confirmed the enactment of such a provision reflected an employer is not out of step with Illinois public policy by requiring drug testing under certain circumstances. They also noted in opposition to the argument drug testing discouraged claim filings, Plaintiff Phillips was not deterred in filing his work comp claim which was the basis for this suit.

The Court also noted the recently enacted Compassionate Use of Medical Cannabis Pilot Program Act provides “[n]othing in this Act shall prohibit an employer from enforcing a policy concerning drug testing ... provided the policy is applied in a nondiscriminatory manner.” 410 ILCS 130/50(b) (effective Jan. 1, 2014). And the Illinois Human Rights Act provides “[i]t shall not be a violation of this Act for an employer to adopt or administer reasonable policies ..., including ... drug testing, designed to ensure that an individual described in [the Act] is no longer engaging in the illegal use of drugs.” 775 ILCS 5/2–104(C).

Teaching Points for HR, Safety and Claims Handlers

The Federal Court confirmed an appropriate conclusion--employment was terminated because of Phillips’ refusal to take the mandatory drug test—not in retaliation for his seeking to file a workers' compensation claim. The teaching points to take away from the claim are the same basics Keefe, Campbell, Biery & Associates attorneys espouse every day in practice when we advise our clients and potential clients to:

·         Adopt and maintain well documented policies, including a policy prohibiting retaliation

·         Provide training or documentation to employees with regard to policies

·         Do not ignore claims or claimants

·         Consider additional measures consistently such as two strike policies or written warnings

·         Closely review all employment actions

·         Document everything to show the policy is routinely and uniformly implemented

In essence, you should consider whether an unbiased observer would think the action was reasonable.

Ramp Up Accident-Reporting Protocols to Block Late Reporting

Please also consider ramping up your accident reporting protocols—one way for workers to skirt or circumvent drug testing protocols is to wait to report the problem or accident for several days or more. The idea is to avoid a positive drug test due to the passage of time. If an employer requires accident reporting to take place on a “same-shift” or same-day basis or have the employee face discipline leading to discharge, you may be able to insure you get valid drug test results. We do feel this concept would hold up in a retaliatory discharge setting because the basis for discharge isn’t the fact of the accident or injury; it would be due to late reporting.

If you want our sample drug-testing protocol to implement in your workplace, send a reply. If you have any questions with regard to employment decisions/litigation or workers’ compensation, please don’t hesitate to contact one of the attorneys at KCBA. This article was researched and written by Shawn R. Biery J.D. MSCC who can be reached at sbiery@keefe-law.com for any questions or insight on your specific situations.

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Synopsis: Analysis of Company Parking Lot Slip/Falls Remains an IL WC Dichotomy Between the Rulings in Wal-Mart and Homerding.

Editor’s comment: The winter in this part of the country during 2013-2014 has been one for the history books. While a given winter apparently has been worse, we don’t remember more ice, snow, sleet and cold. This winter has temporarily allayed concerns about global warming due to its severity. Most reports across the area indicate this is the 6th worst winter of all time in this Midwest U.S and it still keeps snowing and freezing!

We are being asked when a fall-down in a corporate parking lot in all this Illinois ice and snow is compensable. The answer is variable and is highly fact intensive. We are happy to provide a free analysis to any reader who is concerned about covering an unquestioned fall down involving one of your workers. Please understand we are certain to ask some or all of the following questions:

      Did you thoroughly investigate the accident?

      Do you have a written accident report, signed by the injured worker?

      Did you have the supervisor or someone in management confirm the report and the presence of a hazard?

      Do you have and did you carefully preserve any surveillance/security video of the event?

      What company or party owns the land or surface upon which the worker was traveling at the time of the fall-down?

      What company or party maintains the land or surface upon which the worker was walking at the time of the fall-down?

      Are the injuries serious?

From our perspective, if you have a thorough and complete accident investigation, you have completed two important things for your risk management protocols. First, you have documentation needed to accept or defend the problem. Second, you should have the ability to learn from the work injury/problem and prevent the same issue from recurring in the future. A company parking lot fall-down almost always involves a safety failure by someone in your organization.

If you don’t have a thorough and detailed accident investigation, please note the facts may “change” as you get into the claim. In IL, claimants may receive coaching from friends, family and sometimes lawyers about how to best make a claim—you want to prevent that phenomenon if possible with a strong accident review. There is also the unsettling concept where you may have the matter under-reserved and also be in a precarious position, should you decide to aggressively defend a claim that grows from being a minor problem to a major mess. Our advice to all of our readers—“lock in” the facts within the first 24 hours to avoid surprises at a later time.

If you have the facts locked in, the next battle is to accurately determine when to accept and pay and when to fight or controvert an accepted company parking lot fall-down claim for one of your workers. The IL Appellate Court set out a relatively simply analysis for how to handle parking lot fall-down claims. In the Wal-Mart v. IWCC ruling, evidence indicated the employer had a parking lot outside the workplace that was completely unregulated, other than for federally required handicapped parking set-aside spots. Basically, everyone could park anywhere they wanted. There were no assigned or prescribed spots for employees, venders, maintenance providers or the public. When someone fell down in such a parking lot, the risk clearly was the same for everyone in the area or a “risk common to the public.”

In contrast, in the Homerding v. IWCC decision, the Court reviewed facts where the employee was advised to “park out back” and fell in the area where they were directed to park. The limitation on the areas where an employee was required to park was felt to create an increased risk leading to WC coverage. Following this theory, if you have “employee-only” parking or areas of your facilities where the public, your vendors, maintenance specialists or others are not allowed to go, you are setting up a situation where the risks of ice/snow and slipping are limited to your workers. In such a setting, you probably want to accept the claim and direct your ire at your facilities’ managers for leaving areas you control in a dangerous slippery state.

Please also remember many fall-downs aren’t serious. If you are managing a minor strain/sprain situation for a worker, keep the claim minimal by paying for the first OccHealth visit. There is little need to worry about coverages and lawyers and fighting on a medical-only, no-lost-time claim. If the case grows and becomes a major issue, send an email on a 24/7/365 basis to Keefe, Campbell, Biery & Associates for our thoughts on coverage and further handling of the claim.

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

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Synopsis: The Three “Worst” or Most-Challenging Claims for IL WC Adjusters—Amputations, T&P and Death Claims.

Editor’s comment: When we provide training for adjusters, we always like to take a deep breath and confirm there are three types of claims you and your managers have to watch for. The main reason is these claims come with major surprises if you don’t know what has hit your desk.

First and probably most common are amputation losses. The reason amputations can be challenging Illinois claims comes from the mildly confusing way in which Illinois has an “amputation rate” versus normal PPD rates. By that we mean, if an adjuster becomes aware of bone loss for an Illinois worker, you have a short window of opportunity, perhaps no more than 30 days to start paying both TTD or temporary total disability and PPD or the amputation rate for the body part lost. If you don’t make the payments, the claim value can increase to include a 50% penalty and a 20% attorney fee under the 2009 IL WC Appellate ruling in Greene Welding & Hardware v. IWCC.

What is unusual is a worker who makes $250 per week and smashes a hand and loses their pinky or fifth finger will receive amputation benefits at a rate of $501.34 but the rest of the permanency for the hand at the applicable PPD rate of perhaps $250.00 per week (depending on whether they have a spouse and dependents). The weekly amputation benefit is due as soon as the adjuster is aware of the amputation. The balance of the PPD can be negotiated and pretried and even tried.

The same rate issues apply in an IL WC total and permanent disability or death claim. In blunt terms, if a worker making $250 per week is adjudicated to be totally and permanent disabled under any of the three IL WC approaches to lifetime disability, their weekly benefits start at the current minimum of $501.34 per week or $26,069.68 each year. The weekly cap on T&P benefits is $1,336.91 or $69,519.32 per year. Both of those numbers make it crucial for Illinois employers to make strong efforts to bring all injured workers back to work at the earliest opportunity and keep them working. Along with the ADA, every employer should seek to reasonably accommodate return to work efforts at both light and full duty.

On death claims, this math creates a minimum for a widow/widower of $26,069.68 each year with a 25-year undiscounted value of $651,742.00. The maximum IL WC death benefit value for 25 years is $1,737,983.00.

If you need help on setting reserves or managing a claim involving amputation, total and permanent disability or death, send an email and we will get you the right answers.

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Synopsis: Welcome Aboard, Kevin Boyle!

Editor’s comment: We are thrilled to add Kevin to head up our Indiana GL/WC defense team. He is a long-time, knowledgeable and veteran defense attorney based in Bloomington, IN and covers the entire state.

He is listed on www.linkedin.com and is now on our website. Please consider Kevin at KBoyle@keefe-law.com for your statewide IN defense needs!

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Synopsis: This Thursday!! WCRI or the Workers’ Comp Research Institute Stat Rats Document Continued Savings for IL Business in Workers’ Comp—to register, click the link below.

Editor’s comment: Please take a look. Everyone in the IL WC matrix hopes these dramatic and documented savings are going to cause IL WC premiums to proportionately drop.

New WCRI Publication:

The Effect of Reducing the Illinois Fee Schedule

In September 2011, Illinois enacted new legislation that introduced a 30 percent decrease in the fee schedule rates across all types of medical services. Important questions asked by policymakers and others after this fee schedule change are: Did a 30 percent reduction in the fee schedule produce a 30 percent change in the average medical cost of a claim? Was the 30 percent reduction too much or too little? How do the post-reform prices paid in Illinois compare with prices in other states? These important policy questions are addressed in this report.?read the abstract?order this report

Webinar - Effect of Reducing the Illinois Fee Schedule

In an effort to address one of the highest fee schedules in the nation, Illinois enacted a 30 percent reduction in their medical fee schedule in 2011. Since then many have wondered about the impact. Join WCRI researchers and co-authors, Dr. Rebecca Yang and Dr. Olesya Fomenko, for an hour-long webinar as they discuss the findings from a recently published study, The Effect of Reducing the Illinois Fee Schedule on Thursday, February 27, 2014 at 1pm ET (12pm CT, 11am MT, and 10am PT).  Click here to register.