9-15-14; What Happens When WC Medical Care is Ruled Wholly Unnecessary?; Should IL Nursing Homes Have Security Cameras?; New Ruling on Municipal Liability for Snow Removal and more
/Synopsis: What Happens When The IWCC Finds Medical Bills Unreasonable/Unnecessary?—Thoughts and Comments for IL Claims Handlers/Risk Managers. Thoughts and Analysis by Lindsay R. Vanderford, J.D.
Editor’s comment: We consider this an interesting and positive legal trend in IL WC Law and Practice. Last week there was an excellent WCLA (or IL Workers’ Comp Lawyers Ass’n) Symposium on current issues and rulings involving medical bills. If you have concerns and tough questions about how to best counterattack unnecessary and unreasonable medical care in the IL WC system, send a reply. Some of the key rulings are reported below.
(1) Implications of Section 8.2(e) – What Happens When the IL WC Arbitrator or Commission Completely Denies Medical Bills?
The first case discussed was Hernandez v. Illinois Tamale Co. in which Petitioner, a line worker was injured when she slipped and fell in soapy water. Petitioner began treatment 2/2/09 and ended treatment 2/11/09 only to re-enter treatment at some point in April 2009. Petitioner underwent an IME on 5/11/09 wherein Dr. Trotter opined Petitioner had reached MMI and could work full duty. This injury occurred before the 2011 Amendments to the Act, but the Arbitrator’s decision was issued after the Amendments became law. Based on Petitioner’s testimony that she had worked full time during treatment and the findings of the IME doctor, the Arbitrator awarded no TTD and 6% MAW. The Arbitrator found Petitioner was entitled to medical care through 5/11/09, the date of Petitioner's IME. The Arbitrator adopted the opinions of Dr. Trotter that additional medical treatment subsequent to 5/11/09 was not necessary. Regarding medical care subsequent to the IME, the Arbitrator found such “medical care was neither necessary nor causally-related to the January 29, 2009 accident . . . The Arbitrator denied all medical expenses incurred subsequent to the Independent Medical Examination. [The Arbitrator specifically ruled] neither Petitioner nor Respondent shall be liable for these bills.”
There was no express statement in the Arbitration award that treatment was excessive or unnecessary under Section 8.2(e). The question is whether IL WC Arbitrators are now impliedly using Section 8.2(e) when there is a finding treatment is unnecessary and/or neither party is responsible. In pertinent part Section 8.2(e) reads, “Except as provided under subsections (e-5), (e-10), (e-15), and (e-20), a provider shall not bill or otherwise attempt to recover from the employee the difference between the provider's charge and the amount paid by the employer or the insurer on a compensable injury, or for medical services or treatment determined by the Commission to be excessive or unnecessary. (2011 Amendment emboldened). As a result, two related medical providers filed a civil suit against their patient in a breach of contract claim in Marque Medicos Fullerton, LLC and Medicos Pain & Surgical Specialists, S.C. v. Bertha Hernandez. This claim is pending before the Circuit Court and we assume but we can’t confirm the Arbitrator’s ruling will be pled and technically effective as a defense in the matter.
Transportation Expense isn’t a Reasonable and Necessary IL WC “Medical Expense”
In Horacio Perez v. Metro Staff Inc., Petitioner alleged a back injury following lifting a 45 pound box and that he felt a pulling sensation and immediate pain. Date of accident was 11/15/10 (pre-amendment). Petitioner was seen by company clinic, given light duty and physical therapies. An MRI was ordered showing DDD, protrusions and mild left lateral recess and neuroforaminal stenosis at L4-5 and borderline left neural frontal stenosis at L5-S1. Petitioner was referred to Dr. Babak Lami, who opined Petitioner was not a surgical candidate. Petitioner began treatment with Marque Medicos in March 2011. Dr. Erickson later recommended surgery and it was performed 6/29/11 and Petitioner was released to full duty thereafter. The Arbitrator found a causal relationship between accident and the onset of symptoms and subsequent condition of ill being.. Respondent was found liable for all unpaid medical bills related to the injury, specifically treatment from Elite PT, Dr. Erickson, Lake County Neurosurgery, Prescription Partners, Specialized Radiology, Quest Diagnostics, Marque Medicos, Marque Medicos Pain & Surgical Specialists and Ambulatory Surgical Care Facility. TTD was awarded and nature and extent was determined to be 22.5% MAW.
Respondent filed a Petition for Review. The Commission affirmed but found Petitioner failed to prove $4,758.00 in “transportation charges” by the medical provider were reasonable and necessary “medical expenses.” They reduced the award for medical expenses by $4,758.00 but remaining bills were to be paid pursuant to Section 8.2 of the Act. The decision made no specific reference to 8.2(e). The 8.2(e) standard requires only a finding of excessive or unnecessary medical services or treatment. Having looked online, we don’t see the patient was sued in civil court for this expense.
Surgery After MMI Findings May Be Risky for Petitioner
In Maria Gomez v. Speedway Super America LLC, Petitioner alleged injury to her low back lifting a 30 pound box of chicken 1/10/11. On 1/28/11, Petitioner completed an accident report and was seen at MacNeal ER. Petitioner began treating with Alivio Physical Therapy Chiropractic. Petitioner continued to treat with Alivio, with noted improvement. By 6/6/11, decreased pain in her lower back was recorded and Petitioner reportedly “felt no pain today.” Alivio PT notes indicated their patient had reached MMI. Petitioner attended an IME with Dr. Goldberg on 5/13/11, who noted normal exam findings. He read the MRI to show no significant pathology and only mild disc protrusions. He concluded Petitioner suffered a lumbar strain, recommended no further care and placed her at MMI. In contrast, Petitioner had an initial consultation with Dr. Ronald Michael on 6/6/11, who noted back pain worse than her bilateral leg pain, pains were severe with sitting, standing and walking; he noted numbness and tingling bilaterally in the lower extremities. Dr. Goldberg issued addendum report stating injections were not necessary, no change in opinion 9/16/11.
On November 10, 2011, in spite of the negative MRI, the MMI finding by Alivio PT and same MMI finding by the IME with Dr. Goldberg, Petitioner underwent posterior lumbar interbody fusion with hardware and discectomy.
Following surgery, Dr. Carl Graf performed another IME on 2/27/12. He concluded there were multiple inconsistencies, no disc herniation on MRI and no acute findings. He opined any and all care and treatment was not related to an injury. Respondent also produced UR reports decertifying injections, discogram, surgery and work conditioning.
The Arbitrator found Petitioner sustained an accident and reached MMI for the accident on 6/6/11, relying on the opinions of Dr. Goldberg, Dr. Graf and Dr. Barnabas placed Petitioner at MMI. The Arbitrator found the 6/6/11 visit inconsistent with Petitioner’s visit on that same date with Dr. Michael, who recorded severe low back pain. The Arbitrator awarded medical expenses only up through 6/6/11.
Petitioner filed a Petition for Review. The Commission specifically found all treatment, including but not limited to, treatment with Dr. Harsoor, Alivio, Rogers Park One Day Surgery Center, Dr. Michael, Metro South, and Oak Park Medical Center was excessive and unnecessary. Pursuant to Section 8.2(e), they found these providers shall not bill or otherwise attempt to recover from the Petitioner for medical services that have been determined to be excessive or unnecessary. The Commission discussed at length the medical evidence suggesting additional care and surgery was not medically indicated and ruled Dr. Michael’s medical opinions unsupported by evidence. The decision specifically referenced Section 8.2(e) in support of its decision to hold harmless both parties. The Commission decided against the providers for treatment prior to 9/1/11.
In our opinion, this is an area of law ripe for review. Arbitration or Commission decisions either to apply 8.2(e) retroactively may have swung the doors to the Circuit Court wide open. With no place to go to collect unpaid medical expenses as these decisions hold neither Petitioner nor Respondent liable, medical providers are seeking other legal avenues to pursue payment. One has to wonder if the same Petitioner attorneys who handled and lost the IWCC claims are going to then represent their clients when civil litigation is started, as part of the outcome of their handling and advice in the claim.
(2) Payment for Services Not Deemed Covered or Compensable – The Scope of IWCC Settlement Contracts
More often than not, rather than undergoing a full-blown hearing, Petitioners and Respondents may negotiate an agreement to settle the claim. In Kline v. Rovery Seek Company, Inc. (08 WC 050971) just such a settlement was reached. Of note, UR of medical care was completed after the contracts were signed.
After the settlement was entered and approved, in Tiburzi Chiropractic v. Kline, the medical provider for Petitioner Kline filed a small claims suit for non-payment of related medical expenses. In turn, Petitioner filed a 19(g) petition in Circuit Court to arguably enforce the settlement contracts. The Circuit Court judge found the employer made full payment pursuant to the terms of the settlement contract and pursuant to Section 8 of the Act. Thereafter, a November 2012 bench trial was held on Tiburzi’s suit against Kline. Tiburzi argued the private pay agreements of the parties superseded the fee restrictions of the Act in that the Act did not apply in the context of the parties’ contractual relationship and was allowed by the Act. The trial court found that Tiburzi and Kline had a valid and enforceable agreement that was controlling “if allowed under the law.” Trial court awarded Tiburzi $2,010.00 for past due unpaid medical bills, and Kline appealed.
Defendant Kline argued the trial court erred in awarding Tiburzi’s unpaid medical bills because those bills were subject only to the IL WC Act. Tiburzi argued Section 8.2 (e-20) supports the trial court’s ruling that non-compensable bills could be collected from the patient directly. Our IL Appellate Court held Section 8.2(e-20) does not allow for provider to recover for compensable services in excess of the fee schedule but the provider could recover for medical services “not compensable.” In this case, the insurance carrier had paid nothing for 20 cold packs, each billed in the amount of $10. Therefore, Tiburzi was entitled to judgment in the amount of $200 plus costs.
We appreciate your thoughts and comments. This article was researched and written by Lindsay R. Vanderford, J.D. The opinions Lindsay is voicing are hers and not those of any member of WCLA. Lindsay can be reached 24/7/365 for questions about WC at lvanderford@keefe-law.com.
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Synopsis: Will the Proposed IL Nursing Home Camera Law Help Protect Illinois Nursing Home Residents and Workers? Analysis by Bradley J. Smith, J.D.
Editor’s comment: On September 8, 2014, Illinois Attorney General Lisa Madigan held a news conference to gain initial backing for a law designed to place monitoring cameras in nursing home rooms. This law would make Illinois the sixth state in the country allowing family members to put cameras in their relatives’ rooms.
Specifically, the proposed law would allow for video and audio monitoring in nursing home rooms. The law would require consent from the residents and their roommates for camera monitoring. Illinois Senator Terry Link (D) Waukegan will draft the bill and is looking for co-sponsors. During the aforementioned news conference, Senator Link indicated he did not believe there would be much opposition to the proposed law. The Health Care Council of Illinois drafted a statement disclosing their desire to protect nursing home residents in any and every way possible. Nonetheless, in opposition, the Health Care Council of Illinois also brought up the issue of HIPAA and privacy violations as they will relate to the proposed video camera law.
Unfortunately, statistics demonstrate the elderly are allegedly abused and neglected at an alarming rate in the United States. With the elderly population growing at a faster rate than any other segment of the population, this means that a significant percentage of United States population is arguably at risk of being abused or neglected on a daily basis. Similarly, there are also many work injuries that come from nursing home staff members.
Determining whether the proposed nursing home camera monitoring law will be successful in curtailing the obvious issues posed requires weighing both the negatives and the positives. On the one hand, the nursing home video camera law might aid families and comfort them by allowing monitoring of their loved ones. Additionally, the cameras might serve as a deterrent for those individuals and staff in nursing homes that might make the poor decision to abuse a resident. Further, the camera law may serve to protect nursing homes in defense of any unfounded claims of abuse and/or neglect. This could limit the nursing home’s liability if a camera can demonstrate exactly what happened in a given situation. Consequently, this could aid in nursing home defense litigation as there is no “outside of the scope” of employment argument for nursing home staff under the Illinois Nursing Home Care Act, 210 ILCS 45/1-101, et seq.
In contrast, the proposed legislation could also be associated with negative consequences. First, Plaintiffs could have issues with pursuing a cause of action when a video recording of the resident demonstrates the alleged abuse or neglect never occurred. Also, Defendants could have a clear liability issue if the video recording demonstrates a lack of attentiveness and possible abuse/abandonment of a resident. An obvious negative would be the invasion of privacy issue to residents, employees, and visitors. In fact, these cameras will likely degrade residents by recording intimate moments of exposure during bathing, medical examinations, or diaper changes. The cameras could also exacerbate the issue of finding qualified nursing home staff as some positions provide lower pay and employees may likely resent the constant supervision. Lastly, the video surveillance could cause an issue with HIPAA, as the video and audio recording devices would record all activities happening within a resident’s room and then be subject to being viewed by people unknown to the resident.
Despite these issues, as previously stated, similar laws were passed in Washington, Oklahoma, Texas, New Mexico, and Maryland. We suspect the Illinois Legislature will attempt to mirror the laws in these five states. The laws in those states allow residents or their guardians to monitor the room of the resident through the use of electronic devices. They also allow residents to choose where in the room the cameras are mounted as well as when they are turned on and off. The statutes further require express written consent of the residents or their guardians as well as the consent of any roommates. Additionally, they include a release in the consent forms absolving the facilities of any liability from the invasion of privacy resulting from the monitoring devices. Lastly, those laws require notice of the surveillance be provided at both the entrance to the facility and the entrance to the resident’s room.
We are of the opinion the legislature will face major hurdles in implementing the proposed camera laws. Particularly, Illinois lawmakers will have to surmount the privacy concerns to mandate video surveillance in nursing homes where requested by a resident or a resident’s family. Moreover, the moderate cost of installing a video surveillance system would place the burden on the nursing home facility and the Assisted Living Facility (“ALF”), and ultimately, on the residents and their families in higher monthly rates. Regardless, since most nursing home and ALF residents are on Medicare and Medicaid, the burden may eventually rest with the taxpayers. Lastly, the potential of unreasonably priced insurance for nursing home facilities and ALFs as a result of any legislation that requires video camera monitoring will likely impact the nursing home facilities and ALFs. If nursing home facilities and ALFs are unsustainable, then this private provision of care could disappear.
The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding Nursing Home and ALF defense and any other general liability defense questions at bsmith@keefe-law.com.
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Synopsis: Sidewalk Obstruction! Obstruction! Read all about It! Important Illinois Appellate Court ruling on Illinois Municipal Immunity under the Tort Immunity Act. Analysis by Daniel J. Boddicker, JD.
Editor’s Comment: In a decision which clearly effects Illinois Municipalities, the Illinois Appellate Court in the First Judicial District reversed and remanded the trial court and held where a plaintiff alleges a municipality breached its duty to use ordinary care to maintain its property and the public entity invokes section 3-102(a) of the Tort Immunity Act (“TIA”) as a defense, the issue of whether plaintiff was an intended and permitted user is to be determined based upon the property for which the city is alleged to have breached its duty rather than the place where the injury occurred.
In Pattullo-Banks v The City of Park Ridge, Plaintiffs, Lorraine Pattullo-Banks and her husband filed to recover damages for personal injuries she suffered when she was struck by a car while attempting to cross the street. Plaintiff alleged she was walking on a city of Park Ridge sidewalk when she encountered an unnatural accumulation of snow and ice that obstructed her pathway. She further alleged the city of Park Ridge created the obstruction during snow removal operations when it plowed snow from the public streets onto the sidewalk, and consequently, made the sidewalk impassable. Plaintiff alleged because the sidewalk was obstructed, she was forced to cross the street at the point of the obstruction where there was no marked crosswalk. As a result, Plaintiff was injured when she was struck by a car attempting to cross the street.
In defense to the lawsuit, Park Ridge filed a motion for summary judgment based on section 3-102(a) of the TIA arguing it was immune because Pattullo-Banks was not an intended or permitted user of the street where her injury occurred. The trial court agreed and granted summary judgment. The trial court found there was no marked or unmarked crosswalk where Pattullo-Banks was injured. The trial court reasoned a city does not owe a duty to a pedestrian crossing the street outside of any crosswalk pursuant to section 3-102(a) of the TIA.
Upon de novo review, the Appellate Court reasoned the issue of whether plaintiff was an intended and permitted user is to be determined based upon the property for which the public entity is alleged to have breached its duty (the sidewalk) rather than the place where the injury occurred (the street). As a result, the Appellate Court reversed and remanded the matter back to the trial court.
It is important to follow this and other similar rulings that affect the way a municipality should monitor its efforts in the winter to clean its streets and sidewalks. Piling shoveled snow on the sidewalk and obstructing it could subject a municipality to liability for any injury occurring as a result, whether the injury occurs on the sidewalk, or elsewhere. We recommend contacting our firm to discuss your potential liabilities and/or defense of any litigation regarding injuries occurring on your city streets and walkways.
This article was researched and written by Daniel J. Boddicker, JD. Dan can be reached with any of your questions or concerns regarding municipality defense and or general liability defense at dboddicker@keefe-law.com.