5-4-15; The World of IL Work Comp Looks to Springfield for WC Change; Dan Boddicker, JD on New EEOC Conciliation Standard; New Research on Value of PT versus Back Surgery--Consider Athletico and more

Synopsis: The IL General Assembly “Committee as a Whole” Will Convene Tomorrow to Try to Set Illinois WC Policy for What May Be the Next Seven Years.

Editor’s comment: Governor Bruce Rauner was sworn in a little over 100 days ago. He faced lots of challenges since taking over one of the worst-run state governments in the entire country and maybe the world. He took on the task of trying to make Illinois government more business-friendly. One of the issues he put high on his calendar is additional reforms to the IL WC system. As we expect Governor Rauner to be around for seven more years or until 2022; these legislative changes may be present for his expected two terms in office.

In response, IL House Speaker Mike Madigan is calling a mildly unusual legislative hearing named the “Committee as a Whole” to convene the entire IL General Assembly. They will take testimony and consider the legislative changes proposed by the Governor’s staff. We are told the hearings will be available for you to watch or listen to online—if you have strong interest and want the link to that website, send a reply.

There is no question our IL WC system became an outlier in relation to our surrounding states under former and now disgraced Governor Blagojevich. To win an early primary election, Rod Blagojevich promised complete control of the good ole Industrial Commission to Plaintiff-Petitioner lawyers from southern Illinois. When that group got power, they

·         Changed the name of the place from the IL Industrial Commission to the IL Workers’ Compensation Commission;

·         Retooled funding of the place to create a special insurance premium levy on IL business only;

·         Brought in lots of Plaintiff-Petitioner lawyers as hearing officers to greatly liberalize the system;

·         Provided broad WC coverage theories to encompass questionable conditions/claims and

·         Started awarding dramatically higher WC benefits.

When Governor Quinn got into office, he started to slowly change things for the better. The 2011 Amendments to the IL WC Act were enacted to identify and directly counter many of what were considered IL WC abuses. IL Senate President John Cullerton was quoted as saying lots of government programs, including workers’ comp, were getting a “haircut.” Supporters of the 2011 Amendments hoped IL employers and governments would save at least $500 million a year after strong reduction of medical fees for doctors/hospitals who treat injured employees were scaled back and other significant changes were enacted. The debate over the savings rages on and IL dropped from the third-highest state to the seventh-highest state in the every-other-year Oregon WC Premium rankings.

Four years later, former Gov. Quinn is enjoying his hefty state pension and Governor Bruce Rauner is in for what could be as long as seven more years of service. In the WC field, major business groups and municipalities complain they've seen just a fraction of the promised savings from the 2011 Amendments. Rauner hopes to

·         Toughen “causation” or standards workers must meet to prove their injury is due to their job,

·         Limit the ability of employees to claim an injury while doing literally anything when “traveling” for work,

·         Dramatically reduce reimbursement rates for doctors, hospitals and pharmacies that treat injured workers; and

·         Legislatively grant arbitrators the ability to use American Medical Association impairment ratings guidelines as the sole factor in determining how much a seriously injured worker is paid.

Tomorrow, House Speaker Michael Madigan will convene the rare “Committee of the Whole” meeting to allow all 118 legislative members to consider the state of our State’s WC system. Governor Rauner has his own group of lawmakers who will be sitting in to examine the topic. The defense team at KCB&A will be watching, listening and reporting what happens for our readers.

Here are our thoughts on the four issues above:

·         On causation, we don’t think you need legislation; you need common sense. The new IWCC administration headed by Chair Joann Fratianni-Atsaves is certain to reign in the silly “causation” rulings of the past. Please let them do their jobs.

·         On the traveling employee concept, we again feel legislation is going to be challenging and you still have to actually enforce it—a “traveling employee” on the road is always “in the course of employment.” The question is whether the injury “arises out of employment”—that language is already in the IL WC Act. We don’t feel the typical traveling employee should receive expanded WC coverage if they decide to go to a bar and watch a ball game and fall off a bar stool to get injured in the bar. Such injuries don’t arise out of their work. We need hearing officers to deny such claims or get better hearing officers. We recently reported the Appellate Court, IWCC Division ruling in Nee v. IWCC where the majority appears to assert walking on a normal city street in the city where you work in makes you a “traveling employee” and, when you have that status, tripping over a normal city curb is supposedly compensable—we feel this runs directly contradictory to the last IL Supreme Court ruling on the same facts. We also don’t think walking on a city street has anything to do with traditional definitions of traveling employee status.

·         On cutting payments to doctors/hospitals, we feel WC reimbursements should match and not be less than what major non-WC medical bill payers like Blue Cross/Blue Shield pay for the same care. The State of Hawai’i made their WC medical reimbursements lower than local group providers and chaos resulted. You can only tweak medical reimbursements so much before docs and hospitals tweak back.

·         On implementing impairment ratings as a sole factor in determining PPD value, it will certainly save business/ insurance companies money with potentially drastically lower awards but may also cause lots of consternation and possibly unexpected issues that legislators may not anticipate. We offer this comparison/example:

o    Two people enter a building. One is a friendly visitor, say a college intern who wants to see the company. The other is a worker who is in the course of employ.

o    Both people fall down on a slippery substance left in the lobby by company cleaners who know it is there and took a break before marking the area as dangerous.

o    The college intern and the worker both fall and badly break the same arm.

o    The intern sues for negligence and gets an award of $500K from the premises insurance carrier.

o    The injured worker brings an IL WC claim and gets a rating of 8% of the arm and receives $5K.

o    Please note the intention of the WC system is to provide swift, sure and fair benefits for workers who can’t sue in the courts.

o    This comparison exemplifies our concern about this proposed change to IL WC benefits. A strict interpretation of AMA ratings equating to PPD value may result in nominal compensation for serious injuries. The Arbitrator may have no room to “judge” the case and reach a reasonable middle-ground.

o    While there are constant comparisons between the IL WC system and the IN WC system, can we also compare Illinois to Wisconsin, Michigan and Iowa?—they are clearly included in our competition.

o    We don’t want the IL WC system to award giant settlements or any WC benefits for injuries/conditions unrelated to work.

o    Governor Rauner is quoted as saying he wants a WC system to be “competitive, reasonable and balanced.”

o    We don’t feel impairment ratings are uniformly reasonable and balanced—they are simply cheap.

o    Please also remember if you are going to make impairment ratings the sole calculus for permanency partial disability evaluation, we are certain we are going to have to fight lots more wage loss differential or “odd lot” T&P claims. Those exposures are dramatically higher and more expensive to fight. PPD values need to stay somewhat fair and comparable on serious injuries to avoid a shift by the Plaintiff-Petitioner bar in their focus on seeking reasonable benefits.

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

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

Synopsis: U.S. Supreme Court to EEOC—The Courts will be Watching Your Conciliation Efforts! Analysis by Daniel J. Boddicker, J.D.

Editor’s comment: A unanimous SCOTUS resolved a dispute between the Federal Appellate Circuits by holding Title VII permits limited judicial review of whether the EEOC has fulfilled its duty to attempt conciliation prior to suit. We consider this a win for U.S. business as it may avoid your company being sued by the EEOC with their effectively unlimited litigation budget.

Before suing an employer for discrimination, the Equal Employment Opportunity Commission (EEOC) must attempt to resolve  perceived unlawful workplace practices through informal methods of conciliation. In Mach Mining, LLC v. Equal Employment Opportunity Commission, SCOTUS held a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. The Supreme Court reasoned the scope of that review is narrow and set out a standard for future court’s review of conciliation efforts. This decision gives some clarity to a historically confusing section in Title VII.

Title VII of the Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. § 2000e et seq., sets out a multi-step procedure wherein the EEOC enforces the statute’s prohibition on employment discrimination. If the EEOC finds reasonable cause an allegation has merit it must “endeavor to eliminate alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Said language is mandatory and the duty it imposes serves as a necessary precondition to filing a lawsuit pursuant to Title VII. Nonetheless, the EEOC holds the ultimate decision whether to accept a settlement or instead bring a lawsuit. Only if its attempt to conciliate has first failed may the EEOC file suit against an employer. 

In Mach Mining, a woman filed a charge with the EEOC claiming Mach Mining, LLC, refused to hire her as a coal miner because of her sex. The EEOC investigated the allegation and found reasonable cause to believe Mach Mining discriminated against the complainant, along with a class of women who had similarly applied for mining jobs. In a letter announcing its determination, the EEOC invited both the company and the complainant to participate in “informal methods” of dispute resolution, promising a Commission representative would soon contact them to begin the conciliation process. Approximately one year later the EEOC sent a second letter stating such conciliation efforts as were required by law occurred and were unsuccessful and any further efforts would be futile.

The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. The complaint alleged all conditions precedent to the institution of this lawsuit—including, an attempt to end the challenged practice through conciliation—were fulfilled. In response, Mach Mining disputed that allegation and asserted via an affirmative defense the EEOC failed to engage in good faith conciliation efforts prior to filing suit. The EEOC moved for partial summary judgment on that issue, which was denied by the District Judge. Thereafter, the EEOC appealed to the Seventh Circuit Appellate Court seeking reversal. Upon de novo review, the Appellate Court reversed, holding the statutory directive to attempt conciliation is not subject to judicial review. Given the obvious split amongst Appellate Circuits, SCOTUS granted certiorari to address whether and to what extent such an attempt to conciliate is subject to judicial review. Ultimately, SCOTUS vacated the judgment of the Seventh Circuit and remanded the case for further proceedings consistent with the opinion.

Justice Kagan (writing for a unanimous court) explained Title VII pronounces certain concrete standards pertaining to what the EEOC’s efforts at conciliation must entail. The methods necessarily involve communication between parties, including the exchange of information and views. They involve consultation and/or discussion, an attempt to reconcile different positions, and a means of argument, reasoning, or entreaty. SCOTUS held the EEOC must tell the employer about the claim, what practice has harmed which person or class, and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. If the EEOC does not take said actions, it has not satisfied Title VII’s requirement to attempt conciliation.

In discussing the proper scope of judicial review of the EEOC’s conciliation activities, SCOTUS retained a narrow scope. It held the appropriate scope of review enforces the statute’s requirements, that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice, but goes no further.  

In her opinion, Justice Kagan discussed the party’s positions on scope of judicial review and chose to espouse her own standard rather than the obviously one-sided standards proposed by the EEOC and Mach Mining respectively. SCOTUS stated contrary to the EEOC’s position, its two letters do not themselves fulfill the conciliation condition: The first declared only that the process will start soon, and the second only that it has concluded. SCOTUS stated to treat the letters as sufficient is simply to accept the EEOC’s unverified word that it complied with the law. The point of judicial review is instead to verify the EEOC’s word, that is, to determine the EEOC actually—and not just purportedly—attempted to conciliate a discrimination charge.

SCOTUS refused to accept Mach Mining’s suggestion for a review based on a standard set out in the National Labor Relations Act (NLRA), i.e. whether the EEOC negotiated in good faith over a discrimination claim. SCOTUS noted Mach Mining’s proposed code of conduct conflicts with the latitude Title VII gives the EEOC to pursue voluntary compliance with the statute. It noted the EEOC need only endeavor to conciliate a claim, without devoting a set amount of time or resources to that project. Further, the attempt need not involve any specific steps or measures; rather, the EEOC may use whatever informal means of conference, conciliation, and persuasion it deems appropriate. The Court stated Mach Mining’s proposed review would also flout Title VII’s protection of the confidentiality of conciliation efforts. SCOTUS declared to accept Mach Mining’s proposed standard would not enforce the law Congress wrote, but would impose extra procedural requirements.

SCOTUS explained the proper scope of judicial review matches the terms of Title VII’s conciliation provision. The EEOC must communicate in some way about an “alleged unlawful employment practice in an endeavor to achieve an employer’s voluntary compliance.” In other words, the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of reasonable cause. Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements ensures the EEOC complied with the statute. Simultaneously, the discretion allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. A court reviews whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

SCOTUS explained a sworn affidavit from the EEOC stating it has undertaken the aforementioned conciliation steps will suffice to overcome any affirmative defense for failure to exhaust administrative remedies. If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a jury will decide. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake conciliation efforts

This article was researched and written by Daniel J. Boddicker, J.D. Dan can be reached for questions, concerns, or discussion at dboddicker@keefe-law.com.

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

Synopsis: New Study Confirms Physical Therapy Effects Equal to Surgery for Treating Spinal Stenosis Symptoms—Consider Athletico for Such Care.

Editor’s comment: A study reported last week indicates physical therapy for spinal stenosis is as effective as surgery and should be fully considered as a first-choice treatment option. This is the first such study to directly compare a single, evidence-based physical therapy regimen with decompression surgery among patients who agreed to be randomly assigned to either approach. The study focused on self-reported physical function among 169 participants diagnosed with lumbar spinal stenosis after 2 years, but it also tracked function measurements along the way--at baseline, 10 weeks, 6 months, and 12 months. Researchers found not only were 2-year effects similar for the 2 groups (87 who began with surgery and 82 who started with physical therapy), the increase in function followed similar trajectories from baseline on.

This important research was conducted between 2000-2007, and limited to patients 50 years and older who had no previous lumbar spine stenosis and had no additional conditions including dementia, vascular disease, metastatic cancer or a recent history of heart attack. The study, which appears in the Annals of Internal Medicine (abstract only available—click the link), was led by Anthony Delitto, PT, PhD, FAPTA, with coauthors including Sara R. Pilva, PT, PhD, FAAOMP, OCS, Julie M. Fritz, PT, PhD, FAPTA, and Deborah A. Josbeno, PT, PhD, NCS. The findings have been reported in Reuters, the Pittsburgh Post-Gazette, Medpage Today and other outlets. According to an editorial that accompanies the article (sample), what makes this research important is it restricted the nonsurgical approach to a single physical therapy regimen and participants—all of whom were prequalified for surgery—consented to a randomized treatment approach. Previous studies focused on surgical vs. (mostly unspecified) "nonsurgical" approaches, and some allowed patients to self-select their treatment groups.

From evaluation to discharge at Athletico, their physical therapists can help back pain in many ways and below are a few examples of how.

1.         During the evaluation the worker’s past medical history will be reviewed so any prior injuries, surgeries or medical conditions that could affect spinal health are uncovered and can be addressed if appropriate or necessary throughout ongoing treatment.

2.         The injured worker’s posture will be assessed and reviewed with a progression of corrective strategies initiated throughout treatment if deficits exist.

3.         The licensed physical therapist will want to know more about their patient’s occupation, daily household activities, hobbies and recreational sports so the worker can be educated in safe spine positioning, body mechanics and even ergonomics to help decrease any possible repetitive stress that may exist.

4.         A strength assessment will be performed for the worker’s core muscles, scapular stabilizers and hips/lower extremities as needed with a progression of exercises given throughout the course of treatment to improve strength, stability and motor control.

5.         Joint range of motion and tissue flexibility will be evaluated with education and performance of stretching techniques as well as manual work per the physical therapists’ discretion.

6.         Many therapists have advanced training to  assess spinal joint range of motion and restrictions and through the application of manual therapy techniques can restore motion at spinal segments.

7.         Also muscle energy techniques may be administered to also normalize joint integrity. 

8.         To help manage pain, the Athletico therapist may utilize a variety of different therapeutic techniques to ease discomfort such as heat, ice, ultrasound, TENS or traction.

9.         Pain can cause stress and uncertainty so many times a physical therapist helps most just by listening and encouraging through difficult times.

To learn more about this new study or to schedule care at one of the 330 Athletico locations, go to their website at http://www.athletico.com/our-company/the-athletico-story/ or call Mike Trombetta, their Director of Industrial Rehabilitation at 630-575-6209.

4-27-15; Appeal Rights Coming to Some Medicare Issues by Shawn Biery, JD, MSCC, IME Docs--Never Send an Examinee Away Due to Language Barriers: Lindsay Vanderford, JD on Municipal Settlement Battle...

Synopsis: Appeal Rights Coming to Medicare Second Payer Issues Tomorrow!—Will It Work as Well as All Other Federal Programs!!  Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: The Centers for Medicare & Medicaid Services (CMS) issued a final rule implementing certain provisions of the Strengthening Medicare and Repaying Taxpayers Act of 2012 (the SMART ACT). With this final rule, a formal appeals process is established for applicable plans (liability insurance—including self-insurance, no-fault insurance, and workers’ compensation laws or plans) in situations where Medicare Secondary Payer (MSP) recovery is sought directly from an applicable plan. It is important to note—the rule is effective tomorrow April 28, 2015, and applies to demand letters issued on or after April 28, 2015. See below for a link to register for tomorrow’s CMS webinar if you want to learn more.

By way of recap, you may recall Medicare is a secondary payer to liability insurance (including self-insurance), no-fault insurance, and workers’ compensation laws or plans for injuries claims which may be the responsibility of one of those types of "first" payers. Medicare might make "conditional" payments, if they lack knowledge of the first payer or if payment for items or services has not been made promptly or may not be expected to be made promptly by the applicable plan. The payment creates the expectation these payments will be reimbursed to the appropriate Medicare Trust Fund if there is a settlement, judgment, award, or other payment (hereafter referred to as "settlement"). This includes situations where Ongoing Responsibility for Medicals (ORM) exists and once there has been a settlement, Medicare pursues recovery of its conditional payments.

If an MSP recovery demand is issued to the beneficiary as the identified debtor after April 28, 2015, then the beneficiary has formal administrative appeal and judicial review rights. There was no formal administrative appeal rights or judicial review previously and CMS' recovery contractor addressed any dispute raised by the applicable plan, so prior to this final rule there was no multilevel formal appeal process for applicable plans.

The appeals process established in the final rule parallels the existing process for claims-based beneficiary and other appeals for both non-MSP and MSP, and will be used for appeals involving both pre-payment denials as well as overpayments.

PROVISIONS OF THE FINAL RULE: 

The formal appeals process applies to MSP recovery demand letters issued directly to applicable plans as the identified debtor on or after April 28, 2015. Receipt of a courtesy copy (“cc”) of a MSP recovery demand letter by an applicable plan does not necessarily mean the applicable plan has the ability to file an appeal.

There will be a formal multilevel appeal process for applicable plans where MSP recovery is pursued directly from the applicable plan. The MSP recovery demand letter and any subsequent appeal determination will specify any timeframe or other requirement to proceed to the next level of appeal. The process then moves forward as such:

Ø  An “initial determination” (the MSP recovery demand letter),

Ø  A “redetermination” by the contractor issuing the recovery demand,

Ø  A “reconsideration” by a Qualified Independent Contractor,

Ø  A hearing by an administrative law judge (ALJ),

Ø  A review by the Departmental Appeals Board's Medicare Appeals Council, and

Ø  Judicial review.

It is important to note the applicable plan is the only entity with appeal rights/party status when Medicare pursues recovery directly from the applicable plan. The beneficiary is not a party to applicable plan appeals. However, CMS is required to provide notice to the beneficiary of the applicable plan’s intent to appeal and will provide such notice if the applicable plan files a request for a redetermination.

Proper proof of representation must also be submitted in writing prior to or with a request for appeal in order for an attorney, agent or other entity to file an appeal on behalf of an applicable plan or act on behalf of an applicable plan with respect to an appeal that has been requested. Appeal requests without proper proof of representation will be dismissed. Proper proof of representation may be submitted with a request to vacate the dismissal, however the strongest course of action is to make sure proper proof of representation has been submitted when requesting a redetermination. It is also important to note separate proof of representation is required even where an applicable plan may have identified an agent for recovery correspondence as part of the Medicare, Medicaid & SCHIP Extension Act of 2007 Section 111 reporting process.

The applicable plan may appeal:

Ø  the amount of the debt and/or 

Ø  the existence of the debt. 

The regulation does not permit applicable plans to appeal the issue of who is the responsible party/correct debtor. Requests for appeal on the basis the applicable plan is not the correct debtor will therefore be dismissed. Medicare’s decision regarding who or what entity it is pursuing recovery from is not subject to appeal.

Tomorrow, CMS will be presenting a webinar on “Applicable Plan” Appeals which will include: an introduction to the appeals process (as the process is new to applicable plans), information on the appeals process specific to applicable plans, and tips/suggestions to applicable plans regarding the recovery process, including appeals. Anyone interested can take part:

Ø  Date: April 28, 2015

Ø  Start time: 1:00 PM Eastern time.

Ø  URL: https://webinar.cms.hhs.gov/r2g9kffqc46/

They ask you begin logging in approximately 15 minutes before the start time, due to the large number of participants anticipated.

It is still to be determined how well the appeals process will work, however we will follow the process closely and identify those cases in our office in which an appeal may be appropriate and test the process aggressively. If you have any cases which may have the potential, KCB&A has several MSCC certified attorneys to consult with. This article was researched and written by Shawn R. Biery JD, MSCC who can be reached at sbiery@keefe-law.com with any comment or question.

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

Synopsis: Note to IME Docs—Never Send Examinees Away Because They Need an Interpreter—Just Call and Get One!!

Editor’s comment: We had an IME doctor send away an examinee last week because the worker didn’t speak conversational English and the IME doc was not comfortable with having a family member interpret. The doctor didn’t call our office and wanted a “no show” fee due to the problem. We feel IME’s cost a lot of money and no show fees are also expensive—let’s not waste money and time when this issue can be so easily corrected.

Please note the defense team at KCB&A sets around 150-250 IMEs every year. Due to that volume of IME’s that we are handling, we are not strongly aware of the language abilities of the claimants who will be attending examinations. We don’t meet the claimants and we cannot talk to them unless we have prior consent from their attorneys. We also note it is very rare for a Petitioner attorney to contact us prior to an IME and let us know the language abilities of claimants.

What this IME doc and many of our readers were unaware of are the online and “real-time” available services to get telephonic interpretation of hundreds of languages almost instantaneously. If you contact:

·         Transcend Services has qualified and great interpreters waiting for your call and can handle over 200 languages. Take a look at Transcend’s website online at http://www.transcendservice.com/Translation-Interpretation-Services.cfm or on a 24/7/365 basis, call 877-838-3032;

·         AccessOnTime has an established national network of credentialed linguistic specialists, AccessOnTime provides clear, fast and accurate translation and interpretation services. You can find out more at: http://www.accessontime.com/language-services.shtml or call 888-745-7575.

So, as an IME doc that isn’t comfortable about your discussions with an examinee or at any other time anyone in our industry needs rapid and accurate translation, give us or the adjuster a phone call to discuss and then contact one of these great companies.

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

Synopsis: Are We Settled Yet? In an important ruling as it relates to municipality settlements, the Illinois Second District Appellate Court held a settlement was not final and binding since the City Council did not approve it. Thoughts and Analysis by Lindsay R. Vanderford, JD.

Editor’s comment: In a recent opinion, the Illinois Second District Appellate Court in essence affirmed the Circuit Court of Winnebago County’s denial of a motion to enforce a settlement agreement with the City of Rockford. The Appellate Court took the matter pursuant to Illinois Supreme Court Rule 308 on certified questions from the Circuit Court. The certified questions center around the Illinois Municipal Code and the local ordinances of Rockford related to settlement of pending litigation with the approval of the City Council. 

On the eve of trial, Plaintiff Meade, and Rockford reached a settlement agreement at a pre-trial conference, and consequently, the trial date was stricken. Subsequently, Plaintiff signed a written settlement agreement drafted by Rockford. However, when the settlement was presented to the City Council a few weeks later, that body (including some of the council members whom had been present at the settlement conference and had approved the settlement offer at that time) voted to reject the settlement agreement. Plaintiff moved to enforce the settlement agreement, and the Circuit Court of Winnebago County denied the motion but certified certain questions for the Appellate Court to answer. The Appellate Court answered all the certified questions in the negative. Pursuant to Rockford’s Ordinance, settling with Rockford for over $12,500 requires City Council approval, and signing a settlement document agreed to by all parties does not constitute a promise that approval will be consistent when the votes needed to approve the settlement before the City Council are taken.

Plaintiff alleged she was injured on May 10, 2009, when she was standing on the parkway near a street in her Rockford neighborhood, and the ground gave way, causing her to fall into a sinkhole. She filed suit against Rockford in 2010 seeking damages stemming from her injuries. Trial was set to begin on January 27, 2014. After numerous attempts at negotiation, $600,000 was offered by Rockford’s attorney and accepted by Plaintiff. Accordingly, the Circuit Court docketed the case as settled and struck the trial date. The settlement agreement did not state it was subject to approval by the City Council. When the settlement was presented to the City Council for approval, two of the council members who had previously approved the settlement changed their votes. The vote of the City Council was  seven (7) to five (5) against approving the settlement. It is undisputed that, if all City Council members had been present at the meeting and had voted consistently with their earlier positions, the settlement would have passed.

Although the Appellate Court opinion appeared to disapprove of the result of the proper application of legal precedent to determine the settlement agreement could not be enforced, it reiterated the Circuit Court had tools for dealing with parties disregard for its time and the time of all parties involved. In that same vein, the Appellate Court discussed using sanctions pursuant to Illinois Supreme Court Rule 219 for conduct demonstrating a willful disregard for the orders and deadlines set by the trial court or that unnecessarily and vexatiously multiplies the cost of litigation borne by the other party. The Appellate Court went on to describe the circumstances presented in the Circuit Court as ripe for a possible finding of Rockford’s conduct as sanctionable. It is obvious the Appellate Court disapproved of the City Council’s tactic in approving and subsequently disapproving of the settlement.

The analysis and writing of this article was performed by  Lindsay R. Vanderford, JD.  Lindsay can be reached with any questions regarding general liability, municipal defense, and workers’ compensation at lvanderford@keefe-law.com.

4-20-15; Campbell on IL WC "Turnaround" by Gov. Rauner; IL Supreme Ct on Appeal Bond by Pankhuri Parti, JD and Larry Kahan, PhD on "Drive-By" Voc Rehab and more

Synopsis: Gov. Rauner Proposes More Changes to IL WC Act. Can/Should He Get Them Enacted by Our General Assembly? Thoughts by John P. Campbell, Jr., J.D.

Editor’s Comment:  Governor Rauner endorsed a number of “turnaround” changes to the Illinois Workers’ Compensation Act which are clearly intended to save money for Illinois business and cut benefits to Illinois workers. You can read it online at this link: https://www2.illinois.gov/gov/Documents/CompiledPacket.pdf Our Governor has made no secret of his plan to make Illinois “more competitive” with our sister states to attract and keep business and lower gov’t WC costs. The goal itself is commendable--nobody argues with that general premise, as jobs keep leaking out of our state. You may note the WC changes are a small portion of the 44-points outlined. For our industry, the question is, how many WC cuts should we see? What will be the immediate and long-term effect of such changes?

A little historical background is in order. We saw changes in 2005-2006 to our statute which increased the schedule of benefits to injured workers in Illinois. From our perspective, this was entirely unnecessary in a State with perfectly adequate benefit system for injured workers. The 7% increase in the schedule for PPD values only  served to increase the cost of doing business in Illinois. With the economic downturn hitting our nation just a few years later, our IL State Chamber led a charge for changes to the Act which were intended to save money for business and local governments. In 2011, a slashing of the medical fee schedule reimbursement was enacted and we also saw the introduction of AMA impairment ratings which, for the first time, were to be used as one of the factors to determine PPD value. It was recently reported the use of AMA impairment ratings brought down WC trial awards by about 12.5%. We note many Petitioner attorneys feel the actual reduction is even more steep, in the 17% range. We feel this was the intended purpose of introducing impairment ratings; to pull back the generous benefits a bit and also, insert some objective measure to the value of IL WC claims. On these two fronts, we believe the 2011 changes to our IL WC Act produced the intended results and we will continue to see PPD settlements and awards go moderately down in the years to come.

Now, Governor Rauner has proposed further changes to the Act, the most significant of which  include

(1) Implementing strict adherence to AMA impairment ratings to exclusively determine PPD value;

(2) Further cuts to the IL WC Medical Fee Schedule;

(3) New language supposedly increasing the standard on causation; and

(4) Legislative language to better define and reign the reviewing courts in on the ever-changing “traveling employee” concept.

As our team at KCB&A are defense attorneys for IL business and local governments, we can appreciate the less our clients pay in WC costs, the more profitable they would be and the more attractive our State would be for new business and also save gov’t cost. Awards based only on AMA ratings are predicted to be much, much lower than current case values. This would save Illinois business and local government bodies money, without question. However, we can all agree IL WC benefits for significant injuries should not be zero either. Let’s remember, injured workers have no right to sue their employer for negligence when seriously injured in the workplace. A parent of three young children who can no longer play with their kids is not going to be fairly compensated for that loss when you see what some AMA impairment ratings bring for an operated shoulder or spine. In exchange, we have a system designed to replace the benefits which would otherwise be derived from expensive-to-resolve civil claims, and part of our workers’ compensation system is designed to reasonably and rapidly compensate the injured worker for all aspects of an injury and not simply loss of range of motion on a goniometer.

We can all agree some compensation should and must be paid for significant injuries. The question is, what is truly “fair” value for injuries in a state like Illinois with some of the highest wages/taxes and cost of living in the nation? Many would argue higher benefit rates and awards are appropriate in a region with similarly higher costs to live and work. From the injured worker’s perspective then, strict adoption and sole use of AMA impairment ratings to set PPD would severely reduce recovery from traditional values and some would argue such awards are inadequate compensation when faced with the much higher cost of living, particularly in the greater Chicagoland area.

AMA impairment ratings are a good tool to measure physical impairment based on nationally recognized medical criteria, but such ratings do not, in our view, translate strictly into an exact value for compensation of any injury. Petitioner attorneys would argue strict adherence to a medical impairment rating could lead to awards that are severely low for serious injuries. For example, a white collar worker who is seriously injured but capable of returning to his/her job due to the moderate physical demands may incur a relatively low impairment rating, even after serious/multiple surgeries. If this worker must later work in a more physically demanding job, he/she could be restricted or even unqualified due to a prior work injury. For this reason, the Petitioner’s bar (and their clients) would argue strict adherence to an AMA impairment rating  to determine PPD value is unfair to those injured at work. So who’s right?

In our view, it’s all about striking the best balance folks; and we have that in place right now. Prior to consideration of impairment ratings for PPD value, there was no real objective measure for an injury, other than the precedent of thousands of prior awards compiled in the Q-Dex publications. When asked “why is an operated knee worth 22.5% of the leg?” our answer was “because lots and lots of arbitration awards are in that range.” So before 2011, there was no true objective test used at all. However, with the implementation of AMA impairment ratings as one of the factors to consider when ruling on case value, IL Arbitrators have a tool of medical measurement to consider. In  our view, it is also important the same Arbitrators are able to consider a multitude of other factors in each case, including the age,  the physical demands of the job, income earning capacity after the injury, as well as other medical evidence. We find this combination of factors to be the most favorable approach, as it allows Arbitrators to truly “judge” a case based on the totality of facts, which are unique to each case. For this reason, we endorse the current statutory construction which provides for consideration of AMA impairment ratings, but does not restrict a hearing officer from appreciating the relative severity of an injury based on all the facts in the  case. We also note the Arbitrators and Commissioners now “report” to Gov. Rauner and can be replaced in three-year terms—this may also lead to lower awards as more conservative minds are at work. As we have said since Gov. Rauner was elected, some of this takes time but things will get better for IL business and government for years to come.

It is also reported the Rauner camp is advocating further cuts to the IL WC Medical Fee Schedule. This remains somewhat of an enigma to most in our industry; it is very hard to measure “savings” from additional reductions in medical reimbursement. While the 30% reduction in medical reimbursement enacted in 2011 must have resulted in savings for business and local governments, we are told crafty billing practices by some providers are navigating around the intended savings. If that is truly the case, why then, should we just implement further cuts onto those providers who are paying honestly? We are also concerned about the phenomenon that happened about a decade ago in State of Hawai’i WC claims where they made the medical reimbursements so low, doctors and hospitals started refusing WC patients all across the state. It was fairly embarrassing for the Hawai’i legislature to have to go back to the drawing board and raise reimbursements to more reasonable levels. Let’s strike a fair balance, folks.

On the issue of changing the causation standard, we have told Gov. Rauner’s team that isn’t needed. Whatever new legislative standard is implemented on causation can be skirted or completely ignored by a liberal to very liberal hearing officer. We need the Arbitrators and Commissioners to use better common sense in making rulings on the issue of causation and they are doing so as you read this. The crazy rulings from the Marion Correction Center on carpal tunnel from supposedly turning keys in locks weren’t changed by legislation—the new, well-informed and highly professional hearing officers started issuing lots of zeroes and the claims stopped.

The same thing happened on the “traveling employee” concept and we don’t feel legislation is strongly mandated but it might be prudent because of shocking stuff on this topic that randomly comes out of our “activist” courts. The Florida WC Act has simple language requiring a traveling employee to be doing something for their employer when injured for the injuries to be compensable. We suggest that may be a solid idea for our general assembly to consider. If you want the applicable language of the Florida WC Act, send a reply.

Any Better IL WC Ideas?

As we have advised our readers, there needs to be some initiative to get injured government workers at the state and local level off our dime and back to work on modified work. We consider it close-to-criminal to see state and local workers not being provided “reasonable accommodation” under ADA and allowed to remain out on TTD for months and years to then get monster WC “loss of trade” settlements off your tax dollars. Like lots of other WC concepts in our state, the words “loss of trade” aren’t in the Act and you can make up any meaning or value that you like. We hope Governor Rauner’s team starts to address this secret scandal.

Back to the medical field in IL WC, we have always struggled with litigated WC claims where medical providers actually refuse to accept group health payments for treatment on disputed WC claims, only to hope the WC case is favorable for claimant. If so,  the medical provider will then recover more money under the IL WC Medical Fee Schedule than what the group health plan allows. Of course, Petitioner attorneys will tell you how terrible this is for their client if the WC case is denied by the arbitrator. Then, the claimant is stuck with the bills and the medical provider already refused the group payment! Believe us, this happens more than you would think.

In our view, the solution is to have a WC reimbursement fee that is equal to the average of the top three group health insurance providers in the State. This could be revised/adjusted every few years to keep it accurate and up to date. Such a system would end the debate over the alleged “windfall” payments to providers under workers’ comp. It would also serve to insert predictability of cost no higher or lower than major group insurance carriers. By the way, this should also deter doctors from playing lawyer, and trying to advocate for WC compensability just to make more money under the WC fee schedule. This also occurs more than you would think.  Perhaps our representatives wrestling with these  concept could consider such an alternative to this ongoing issue.

This article was researched and written by John P. Campbell, Jr, J.D. with a little help from your editor. Please direct questions or concerns to John at jcampbell@keefe-law.com. Please also feel free to post them on our award-winning blog.

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

Synopsis: IL Supreme Court Requires our State Treasurer to Post an Appeal Bond to Appeal IL Work Benefit Fund Fight. Thoughts and Analysis by Pankhuri K. Parti, JD.

Editor’s comment: The Supreme Court of Illinois ruled in Illinois State Treasurer v. Illinois Workers’ Compensation Commission et al, the Illinois  State Treasurer acting as the custodian of the Illinois Workers’ Benefit Fund is required to post an appeal bond pursuant to Section 19(f)(2) of the IL WC Act in order to involve subject matter jurisdiction of the courts to review a decision entered by the Workers’ Compensation Commission against the Fund. This ruling will have relatively limited scope.

In the present case Claimant, a home healthcare provider, was injured when she fell down the stairs at the home where she worked. Claimant filed an Application for WC benefits against her employer – the patient she cared for – and because he lacked workers’ compensation insurance at the time of her injury Claimant and her counsel also looked to Illinois’ Injured Workers’ Benefits Fund for relief. At the arbitration level the Arbitrator found Claimant had been injured in an accident which arose out of and in the course of her employment and awarded her temporary total disability benefits, medical expenses, and compensation for permanent partial loss of both her hands. This award was made against the Fund under Section 4(d) of the Act because of the employer’s failure to pay benefits. The decision was appealed by the Treasurer, as the Fund’s custodian, and the Commission unanimously affirmed and adopted the decision. Again in its capacity as the custodian, the Treasurer appealed the decision to the Circuit Court and then to the Appellate Court. While initially the Appellate Court reversed the Commission’s decision, Claimant filed a petition for rehearing arguing for the first time the Courts lacked jurisdiction.

This sets up the odd and seemingly contradictory scenario where the IL Appellate Court, WC Division first ruled it wasn’t a valid WC claim and then, on rehearing, found they couldn’t decide the claim, resulting in benefits being awarded.

Claimant’s petition for rehearing was based on two premises. First she contended her claim against the Fund was actually against the State of Illinois and the award in her favor was not subject to judicial review; however, this was immediately rejected by the Appellate Court. Claimant also argued judicial review was barred because the Treasurer had not filed an appeal bond, a statutory prerequisite for invoking the Circuit Court’s jurisdiction. The Appellate Court agreed with Claimant and ruled the Treasurer should have posted the bond if he wished to seek a review and since no such bond was posted, there was no subject matter jurisdiction to allow the courts to hear the appeal. This ruling of the Appellate Court was challenged to the Supreme Court of Illinois.

In the appeal the Treasurer argued the Workers’ Compensation Act should not be construed to impose the jurisdictional requirements of the posting an appeal bond upon their office as it would be contrary to the language, purpose, and history of the statute and would result in consequences which the legislature did not intend. The Court, however, rejected Treasurer’s claims the language of section 19(f)(2) was ambiguous and specifically directed towards only employers and insurers, with there being nothing to show the statute reflected an intent to include the Treasurer. According to the Court, this interpretation was not only incompatible with the principles of statutory interpretation, but also attempted to inject ambiguity into the statute when none existed. The Court further explained the legislature had used the terms employers and insurers throughout the Act as well as in Section 19, and if the legislature intended to confine the bond requirement to those specific groups, it could have easily done so by using the same terms.

The Treasurer also argued it was anomalous for the legislature to exempt cities and other governmental entities from the bond requirement, while expecting him to post a bond. However, our highest court held the Treasurer was treated differently because the Act made clear for the governmental entities to be exempted only when they were the actual employer of the injured workers. Hence, the Court explained, if the Treasurer was claimant’s actual employer, he would not be subject to the bond requirement by virtue of being a government entity. Because the Treasurer was involved in the litigation solely by virtue of his responsibility as Fund’s custodian, it was a function for which there was no analog among the entities exempted by section 19(f)(2). It was also the Court’s opinion if the legislature disagreed with this decision and believed the understanding of the Act was one which it did not foresee or intend, it could amend the law with respect to future cases.

This article was researched and written by Pankhuri K. Parti, JD. Pankhuri can be reached 24/7/365 for questions about WC at pparti@keefe-law.com.

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

Synopsis: Why “Drive-By” Vocational Rehabilitation is Hurting the Reputation and Role of the CRC in the IL Workers’ Compensation System. Guest article by Larry Kahan, PhD, CRC.

Editor’s comment: Having worked as a Certified Rehabilitation Counselor (PhD, CRC) for many years in the IL workers’ compensation system, it never ceases to amaze me to observe the lackluster, unprofessional approach taken by a few bad apples in our voc rehab industry. Yet, these are the very “so-called professionals” who are creating an untenable situation for the rest of the decent vocational counselors who are challenging the previously-held assumptions about compliance and its relation to the overriding system abuses we see every day when we see half-measures taken by injured workers who have zero intention of ever getting back to gainful employment! It’s time to treat your profession as a CRC with integrity rather than a coffee break at Starbucks®.

Case in point: How many times do we work with injured workers who are merely going through the motions in their job search activities; perhaps doing just enough to avoid a label of non-compliance or outright sabotage of the job search process? Unfortunately, in my experience, the exception tends to prove the rule. It has become so commonplace for some individuals to dodge, omit, engage in half-measures, and seek to subtly (and often not-so subtly) derail the job search process, that to work with a claimant who truly wants to get back work and displays the integrity to make that happen is almost nonexistent in my world. From a defense standpoint, certainly taking into account the practice of ethics we are called as professionals to adhere to, we need to start by understanding our role.

Often a Petitioner attorney will attempt to point out in emphatic terms that our client is, in fact, the injured worker; thus the implication is the vocational counselor is brought in the protect the IW (according to the legal maneuvering playbook written by some Petitioner attorneys). Hogwash! If their client was a willing participant, showing through his/her actions from the outset they are truly committed to a serious job search, then I have no trouble spending many hours each week in assisting them to find the highest paying career possible. It is a truism that actions speak infinitely louder than words. Words coming from the attorney about just how incredibly motivated their client is to find work, that he/she intends to cooperate fully with an appropriate job search, ring hollow as soon as that very same client begins to become lackluster in documenting the job search. If the individual is doing a reasonable job search, both from a quantitative and qualitative perspective, it almost always shows up in the documentation and results. Thus it starts with a commitment to the following: Submitting job logs with appropriate detail, showing up for job placement meetings on time and dressed appropriately, maintaining a good attitude in the face of life challenges, having the willingness to do whatever it takes to market themselves in a positive light, and participating attentively to job-seeking-skills-training. This isn’t rocket science, and every person faces the socioeconomic considerations of the time. However, it the injured worker is willing to do what the mediocre are not; they WILL find a job.

Sabotage part 1: Interfering and disrupting how one is perceived by a prospective employer comes in all sort of packages. And, frankly, I know it when I see it. Where there is smoke, there is more often than not, fire. Here’s a few of the common attempts in the “playbook.”

1. “Roll out the scroll” This is where the injured worker seeks to let the employer know more information than they want. All then employer wants to know from a physical standpoint is: Can you physically perform the job.” Yes or no. Simple as that. When the IW decides to roll out the scroll of his/her injury, including pictures (I swear), there’s a pretty good chance their intent goes beyond simple honesty. They will say things like, “Isn’t it best that I be completely honest with the employer.” They conveniently forget we are having them apply to jobs that are well within their restrictions. By bring up the details of the injury, the IW seeks to sabotage the hiring process before it ever gets off the ground. I suspect there may be 1 or 2 Petitioner attorneys who are strong advocates of this approach, claiming their client is just being honest. I call baloney here!
2. “No shirt/shoes, no service.” Uh, thanks for coming, but no thanks! How often does an IW show up for an interview dressed like a bum? This is a surefire way to squash consideration as soon as you walk in the door. In fact, if you don’t shower, they don’t even need to see Mr. Sab O’Tage coming. Next!
3. “Doctor Moe, Larry & Curly” At what point did the injured worker become their own doctor, diagnosing themselves and setting their treatment plan? I can tell you how often and injured worker looks me straight in the eye and claims they can’t drive. Bottom-line: If it’s not in the medical notes, not specifically mentioned as part of the restrictions laid out by a physician well-informed about the case, it is not part of the restrictions. Here’s a common line of nonsense: I’m taking XYZ medication and thus cannot drive. That is simply a falsehood! Yet, you may be surprised at how many vocational counselors take this admonition as gospel. No documentation, it doesn’t exist! Period.
4. “The Application Blues” This type of sabotage goes like this: The applicant who’s playing the system decides they need to write a thesis on their injury on the employment application. The questions calling for the injury novel? “Please explain the reason you left previous employer:” Again, we need to be clear with the injured worker exactly how to answer that question in the manner it was intended. Perhaps they need to carry around a stamp which reads: THIS IS MY THIRD WORKERS’ COMP CLAIM IN 4 YEARS! 

Perhaps it goes with saying the vocational counselor needs to create clear expectations for an appropriate job search from the outset. Make sure this is spelled out in a Job Search Expectations Agreement document reviewed before you start the job search process. Let the Petitioner attorney and IW know you will hold the client accountable M-F, from 9:00AM-5:00PM, 8 hours per day to ensure you are providing the proper guidance to achieve the return-to-work goal as expeditiously as possible. Don’t be afraid to discuss mutual accountabilities. Further, let them know unequivocally you will be verifying every single activity the IW does in order to offer the best feedback possible. That way, there will be no surprises down the road.

Return to work is always the primary plan. We need to expeditiously get the injured worker the highest wage possible, as close to the pre-injury wage as we can. But, often times this isn’t possible due to the previously mentioned nonsense. In that scenario, we need to show very clearly with excellent documentation why, despite every bit of assistance offered to the injured worker, they are not finding a job thus far. It’s critically important we show what we’ve offered in the way of reasonable and appropriate training, job leads, ongoing coaching, and accountability parameters. Yet, despite all that, Mr./Ms. O’Tage is not securing interviews because he or she is not following the specific vocational rehabilitation plan customized for them. Further, we need to cite the Illinois Supreme Court’s landmark decision in National Tea v. Industrial Commission:

We do not mean to imply, by the foregoing discussion, that the Commission should consider only the interests of the employee in determining an appropriate rehabilitation program. Because the employer is required to "underwrite" the expenses attendant to rehabilitation, it is essential that any program selected be reasonable and realistic. Consequently, where rehabilitation is ordered, the Commission should establish boundaries which reasonably confine the employer's responsibility.

It is worth remembering the longer a capable injured worker remains in job placement without finding employment, the more likely we are assisting Petitioner’s attorney in laying out a legal foundational argument for an Odd-lot/Perm Total. Vocational placement should never last more than 3 months. Either the person is employed by that time; or they are almost always sabotaging the process. That’s why our vocational rehabilitation plan has to be well-thought out, documented in a way that leaves no wiggle room, and adhered to from the outset. No more drive-by voc! This article was researched and written by Larry Kahan, PhD, CRC. Larry can be reached via email at Lawrence_Kahan@corvel.com.