3-17-14; IL Medical Marijuana Law May Be The Best Reason to Go Alcohol and Drug-Free; Matt Ignoffo, JD Fights/Wins a Fall-Down Ruling; IL WC Statutory Interest Redux; Happy St. Paddy's and much more

Synopsis: Our New Illinois Medical Marijuana Laws May Be The Best Reason to Make Your Workplace(s) Alcohol and Drug-Free.

Editor’s comment: We have had so many readers and clients ask, we want to provide clear thoughts for HR, Safety and Personnel managers in dealing with this new challenge. On January 1, 2014, the Compassionate Use of Medical Cannabis Pilot Program Act (CUMCPPA) went into effect in our state. Basically, the Act provides if you have a listed medical condition and want to use marijuana for it and if your doctor approves, you can smoke weed basically to your heart’s content. In lots of industries, we consider that a dramatic rise in risk. We are confident underwriters across the U.S. who are evaluating projected insurance premium costs are certain to start asking what you are doing about this new and unprecedented change to your workplace. We aren’t sure why more carriers aren’t mandating alcohol/drug-free programs.

There are new administrative rules that have been posted about this new law—they have four months to put them into place. The IL Departments of Revenue, Agriculture and Financial and Professional Regulation posted draft rules online to address how dispensaries and cultivation centers will be regulated and taxed. The proposed rules include provisions for how cultivation centers must package and label the marijuana. They also say that 21 of the 60 dispensaries required under the law would be outside of the Chicago metropolitan area. The Illinois Department of Public Health previously posted rules for patients, including requirements for fingerprinting, background checks and a $150-a-year photo ID. The new state law with these combined regulations present some of the strictest standards in the nation. They can be viewed online: http://mcpp.illinois.gov

On a common sense note, we ask everyone why medical marijuana isn’t in pill form? Does it make any medical sense for patients to be smoking it? What is all the Grateful-Dead-like excitement about growing weed, wrapping it in bags, rolling it with papers and smoking doobies? A Canadian study from last fall demonstrated a strong link between smoking marijuana and lung cancer. We are aware there are other research studies that don’t support the lung cancer conclusion but the nature of the research wasn’t scientifically significant in some of them. Either way, why take a chance? Is the romance of rolling numbers that strong? We feel if patients and doctors feel the therapeutic benefits of marijuana are necessary and ameliorative for some medical conditions, we consider it nonsensical to have patients smoke what they could simply take much more safely as a pill with a glass of water.

But we digress. One strong aspect of IL medical marijuana laws are clear—if you have a drug and alcohol-free workplace program, you don’t have to allow your workers to fire up their roaches before or during work. The language of the CUMCPPA says (in pertinent part):

Section 50. Employment; Employer liability.

(a) Nothing in this Act shall prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis.

(b) Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.

(c) Nothing in this Act shall limit an employer from disciplining a registered qualifying patient for violating a workplace drug policy.

(e) Nothing in this Act shall be construed to create a defense for a third party who fails a drug test.

This language was designed to protect the right of Illinois employers to strongly block the use of medical marijuana at your place of business. In fact, we feel it strongly encourages all employers who haven’t started alcohol and drug-free workplace programs to get going with them. In fact, as attorneys, we cannot see any downside to getting a program in place. To the contrary, if you don’t get an alcohol and drug-free workplace program moving, you are taking the chance that your workers will randomly fire up cannabis cigarettes and arguably become less safe to themselves, their co-workers and the public.

Please also note there is a derivative value in using the new Medical Marijuana law/rules to get moving into the Alcohol and Drug-Free Workplace protocols. It will make your whole workforce safer! If you spend the extra time and a little money needed to start watching your workforce and get everyone clean and sober all day, you are going to have less accidents, near-misses and better mod rates. Remember, the cost of just one accident caused by an impaired employee can devastate a small business.

Although not required by the Occupational Safety and Health Administration (OSHA), drug-free workplace programs help ensure safe and healthy workplaces and add value to America’s businesses and communities.  Such programs help reduce occupational injuries and illnesses and send a clear signal that employers care about their employees. A comprehensive drug-free workplace program generally includes five components:

1.    A written alcohol and drug-free program with dissemination to your workforce.

2.    Supervisor/Manager training;

3.    Employee education

4.    Employee assistance or EAPs; and

5.    Drug testing. 

1.    Written Program with Dissemination to Your Workforce

Defense team at KCB&A has a written alcohol and drug-free workplace policy for your consideration and use. If you want a draft copy, send a reply. That said, your organization’s program should be tailored to meet your specific needs and we are happy to assist, as you feel necessary. All effective programs have traits in common, including why the policy is being implemented, a clear description of prohibited behaviors, and an explanation of the consequences for violating the program requirements.

Disseminating the program to your workforce is crucial for it to be successful. We suggest spending the money on handbooks, workplace signage and repetitive/regular discussions of the concept at employee meetings.

2.    Supervisor/Manager Training

After finalizing your program, your organization should train those individuals who are going to be on the front lines and enforce it; your supervisors and managers. Training should insure your enforcers understand the alcohol and drug-free workplace program including ways to recognize employees with small to large impairments or who have performance problems that may relate to banned substance abuse. You also have to train your supervisors/managers on how to refer line employees to alcohol or drug assistance or for drug testing as needed.   Supervisors/managers should be trained not to diagnose substance abuse problems or provide counseling to employees who may such issues—lots of issues can erupt if that path is taken. Make sure your supervisors/managers know their role.

3.    Employee Education

A drug and alcohol education program provides your employees with information they need to cooperate with and benefit from a drug-free workplace program.  Effective programs provide company-specific information, such as the details of the company’s policy, as well as general information about the nature of addiction; its impact on work performance, health and personal life; and help available for related problems.

4.    Employee Assistance Programs or EAPs

A critical component of a drug-free workplace is providing assistance to employees who have problems with alcohol and other drugs. Employee Assistance Programs (EAPs) are worksite programs that provide problem identification, assessment and referral services for employees.  They are effective vehicles for addressing poor performance that may stem from an employee’s personal problems, including substance abuse. 

5.    Drug Testing

Employers decide to drug test for a variety of reasons, such as blocking or identifying drug use, as well as providing evidence for needed intervention, referral to treatment and/or disciplinary action. We assure our readers the decision of who and when to test is where litigation typically arising. Before deciding for protocols on testing, employers must consider certain factors, such as who will be tested, which drugs will be tested for and when and how tests will be conducted. We strongly suggest you consult with the defense team at KCB&A about your testing practices and procedures.

All in all, we don’t see a downside. Please don’t let your business be at risk for dangers that come from now-legalized marijuana users along with alcohol and other drug abuse. Start and stick with a program and stay even with your competition. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: KCB&A’s most recent Illinois Appellate Court win came in last week!!! Petitioner’s Unexplained Fall Not Compensable as Petitioner Not Subjected to a Risk Greater than the Public.

Editor’s Comment: Risk managers and clients across the state are dealing with fall-down claims due to the difficult winter in the Midwest U.S. We feel some claims adjusters pull the trigger toward compensability much to quickly—if you have the right facts, fall-down claims can be won.

The facts in Dixon v. Rush University Medical Center (No. 1-13-1350, March 10, 2014) involve an accounting clerk who, when returning from a cigarette break, fell in the main entrance of the hospital. Petitioner testified she, “slipped on the rug and the rug slipped straight from under me.” She presented for ER treatment and although she returned to work a subsequent recommendation was made for a lumbar fusion. The matter proceeded to hearing and the Arbitrator awarded benefits along with the prospective surgery. We appealed to the Commission and all three Commissioners denied the claim finding no increased hazard and no risk greater than the general public. Surprisingly, the Cook County Circuit Court reversed and we appealed the matter to the Appellate Court, Workers’ Compensation Division.

The Appellate Court majority cited case law discussing employee falls: To determine whether a claimant's injury arose out of her employment, the risk to which she was exposed must first be categorized. Baldwin.

Risks to employees fall into three groups:

1. Risks associated with the employment;
2. Risks personal to the employee, such as idiopathic falls; and
3. Neutral risks that have no particular employment or personal characteristics. Id.

Petitioner here acknowledged the risk of falling while walking, as in this case, is considered a neutral risk. Injuries resulting from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to the risk to a greater degree than the general public. Metropolitan Water Reclamation District.

Evidence an employee is exposed to the neutral risk of falling to a greater degree than the general public may be either qualitative, such as when the fall results from a defect in the employer's premises or when some other aspect of the employment contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently than the general public. In order for an injury caused by an unexplained fall to arise out of the employment, a Petitioner must present evidence which supports a reasonable inference the fall stemmed from a risk related to the employment.

Here, there was no evidence presented indicating any aspect of Petitioner’s employment contributed to the risk. The Commission held, based on Petitioner’s testimony and the medical records, it was unknown whether the rug slipped, if Petitioner slipped on the rug, or if she tripped on the rug. There was sufficient evidence to support this determination.

It was next discussed by the Appellate Court whether the injury resulted from a condition of the employer’s premises. Petitioner claimed the rug itself was somehow a “hazard,” but we countered arguing there was no evidence in the record indicating this. The Appellate Court agreed with usand acknowledged there was nothing in the record to indicate the rug was either defective or hazardous. As such, there was a reasonable basis for the Workers’ Compensation Commission to infer the condition of the premises was not the cause of Petitioner’s injury.

Finally, the Court examined whether Petitioner was subjected to a greater quantitative risk than the general public because of her employment. Petitioner offered no evidence of the frequency with which she took the path where the fall occurred. The Court cited the First Cash Financialcase for the statement of law indicating by itself, the act of walking across a floor at an employer’s place of business does not expose an employee to a risk greater than that faced by the general public. There was nothing in the record here to distinguish Petitioner’s risk in traversing the entrance from the risk to the general public. As the Commission’s decision holding Petitioner failed to prove she sustained accidental injuries arising out of and in the course of her employment was within the manifest weight of the evidence, the Circuit Court order was reversed and the Commission denial reinstated.

As you can see, fall down cases are very fact specific and merely because a worker falls at work, or while working, and gets injured does not mean the case is compensable under the Act. If you are handling such a case feel free to contact us to discuss the best way to move forward and how to position the case for denial.

This case was successfully defended by and article researched/written by Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.

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Synopsis: Statutory Interest on IL WC Medical Bills, Part II.

Editor’s comment: We have had lots of inquiries and concerns voiced about the article from the KCB&A Updatelast week indicating there is a well-known medical provider now suing insurance carriers and TPA’s in Circuit Court for recovery of statutory interest on IL WC medical bills. We wanted to provide our readers and clients a few additional thoughts we received from all of you!

·         First, we note many of the Circuit Court claims for 12% annual statutory interest are being filed after the underlying WC claims have been settled with IWCC approval or Arbitration/Commission decisions have gone final. The theory being employed in bringing such claims is the medical provider is a “third-party beneficiary” of the language of the IL WC Act. We don’t consider that approach to be well-founded from a legal perspective—we don’t feel a Circuit Court can or should retroactively relitigate WC issues. For example, it doesn’t make sense to us for a Circuit Court to add a post-decision penalty for late payment of medical bills under Section 19(l) of the IL WC Act. Either way, we are all going to have to wait and see if the concept stands the test of courtroom battling at the Daley Center and beyond.

The main reason for our criticism of this approach is exemplified in the first lawsuit where the IWCC awarded $270,857.60 for medical expenses. We don’t know much about the underlying claim but it is our view if the Commission awarded that specific $270K amount, the employer/insurance carrier/TPA would owe that amount. If the employee wasn’t asking for and didn’t get a ruling allowing statutory interest, such interest would not be due. We don’t feel the Circuit Court has the ability to act as a “super-Commission” to add new benefits not awarded in the administrative agency.

·         This highlights the second concern about the IL WC statutory interest anomaly—in many occasions, there are substantial but very real disputes about compensability. If you read the great article by Matt Ignoffo above, you may note he was handling a claim with a dispute over fusion surgery. If that surgery had proceeded under the employee’s group health coverage, such care might have had a cost of between $50,000 to $150,000. The fully disputed accident in the claim was from January 2011 and it wasn’t decided during more than three years of hearings and appeals. In our view, the bills wouldn’t have been “due” until the final ruling and mandate of the Appellate Court, Workers’ Compensation Division issued and thereby became final. In our reasoned academic view, statutory interest would also have to wait to start once the same ruling to reach finality.

If there were no disputes and the employer/insurance carrier/TPA accepted the claim, certified medical care and received properly coded bills, we would strongly agree statutory interest would be due after the passage of 30 days and would continue to run. To get that statutory interest payment, we feel collection efforts by a medical provider should start during the pendency of the IL WC claim. In moving forward in this fashion, the Arbitrator or Commission panel could adjudicate the issues fairly for all parties.

·         We urge our clients and readers in the medical industry to fine-tune your WC medical billing collection procedures. We feel you need to develop the computer capability of not simply sending unpaid bills with proper coding on a regular basis—you should also start adding the dates of prior submission and the added statutory interest to which you are entitled under the IL WC Act. If you also send copies of the updated bills with added interest to Petitioner’s counsels, they can easily ask for the Arbitrators or IWCC panel to add statutory interest to the award. If they don’t have that documentation, we consider it very challenging to first ask for statutory interest after settling or getting a final ruling.

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

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Synopsis: One Day 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 tomorrow’s primary.

On the Republican side, we remain 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; we are the 3d from the bottom of all the United States—there is no question people, jobs and businesses are leaving;
• Our state government pension debt is over $100B—this comes from what we call “lifetime pay” where our legislators, judges and most government workers only contribute a small fraction of the money needed to pay them 80% of their pay with 3% annual increases for the rest of their lives—this phenomenon means taxpayers continue to pay salaries of workers who don’t work for the state any longer and it is being hidden or shown to voters only in the most confusing fashion by our elected leaders and the media;
• 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 address the “lifetime pay” issue in a fashion the other career politicians cannot and will not;

• 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.

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Synopsis: Happy St. Paddy’s Day to our clients, friends and readers.

Editor’s comment: Please drive and party safe out there folks!

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.