5-25-15; IL WC Legislative Reforms Blocked in IL House But Battle isn't Over; Dr. Fletcher on Proposed IL WC Medical Fee Schedule Changes; Using Cell Phones to Informally Video Depositions and more

Synopsis: IL WC Legislative Reforms Blocked; Gov. Rauner Remains Irresistible Force/Immovable Object—Can Our WC System Get Out of His Crosshairs?

Editor’s comment: New IL Governor Bruce Rauner announced plans to introduce legislation on workers' compensation, government restructuring and term limits. The Illinois House of Representatives debated and voted against workers compensation reform but did not take up tort reform. The Illinois House debated and voted on four workers' compensation amendments. The first three failed and the fourth passed. Here are details about the proposed legislative amendments:

Ø  Amendment 1 added a "major contributing" cause standard to evaluation of accidental injuries under IL WC. It failed to pass on a vote of 0-69-38.

Ø  Amendment 2 would have changed AMA guideline usage in determining permanency; it may have caused much lower awards. This also failed 0-69-38.

Ø  Amendment 3 was a 30% IL WC medical fee schedule cut. This failed to pass with a vote of 0-69-37.

Ø  Amendment 4: WC insurance rate regulation and safety premium and self-insured fee reductions. This was adopted by the House 68-0-39.

Most of the House Amendment on insurance rates was insurance-ese. See below--this is the major proposed change to the IL WC Act for the IL WC community to note—remember it has to be passed in the Senate and signed by Gov. Rauner to become law:

(820 ILCS 305/4e new) Sec. 4e. Safety programs and return to work programs; recalculation of premiums and waiver of self-insurers fee.

(a) An employer may file with the Commission a workers' compensation safety program or a workers' compensation return to work program implemented by the employer. The Commission may certify any such safety program as a bona fide safety program after reviewing the program for the following minimum requirements: adequate safety training for employees; establishment of joint employer-employee safety committees; use of safety devices; and consultation with safety organizations. The Commission may certify any such return to work program as a bona fide return to work program after reviewing the program for the following minimum requirements: light duty or restricted duty work; leave of absence policy; and full duty return to work policy. The Commission shall notify the Department of Insurance of the certification.

(b) Upon receipt of a certification notice from the Commission under this Section related to an employer that provides workers' compensation through an insurer, the Director of Insurance shall immediately direct in writing the employer's workers' compensation insurer to recalculate the workers' compensation premium rates for the employer so that those premium rates incorporate and take into account the certified program.

(c) If any workers' compensation safety program or a workers' compensation return to work program implemented by a self-insured employer is certified under this Section, the annual fee under Section 4d of this Act is waived for the self-insured employer as long as the workers' compensation safety program or a workers' compensation return to work program continues. The self-insured employer shall certify the continuation of the program by each July 1 after the waiver is obtained.

What we consider ironic and embarrassing about this proposed change to the IL WC Act is the two biggest WC programs in our State that don’t have either a safety program or a return to work program are the State of Illinois itself and the City of Chicago. Both governments are literally tens of billions of dollars in choking debt. We hope Governor Rauner, Senate President Cullerton and House Speaker Madigan along with Chicago Mayor Rahm Emanuel and Alderman Ed Burke follow the concept espoused in this new proposed WC amendment and initiate safety and return to work programs and save hundreds of millions of dollars. The defense team at KCB&A is happy to consult with these governments and any of our readers on getting this into place at no charge.   

The Madigan-Hates-Millionaires Tax Gets Postponed—We Hope It Dies In the IL Field of Bad Anti-Business and Anti-Jobs Ideas.

Speaker Madigan’s millionaires tax suffered a near-defeat in the Illinois House last Thursday. In a victory for the business community, specifically small business and entrepreneurs, the IL House was unable to pass HJRCA 26. It would set up a general election vote in November 2016 on whether to add a 3 percent surtax on incomes above $1 million. As he saw his pet project going south, Sponsor House Speaker Michael Madigan postponed consideration, so it could come up for another vote. The IL State Chamber calls it a tax on being successful and we agree fully with that sentiment. We also note Speaker Madigan claims the money raised is going to be “ear-marked” for education. If you are reading the Illinois newspapers and other media outlets, you may note the Chicago Tribune highlighted another type of fake pension abuse among our educators in a front-page article where taxpayers are being forced to pay for school districts that dramatically boost salaries in the last year or so of a retiree’s career to insure they get the highest possible fake pension from state government and also force IL taxpayers to also pay significant penalties for what the school districts are doing in tricking up the pensions. Along with recent news articles documenting numerous financial abuses in  our colleges and universities, starting with the College of DuPage, we aren’t as excited to hear the supposedly soothing legislative mantra that over a billion dollars in new increased taxes will go to “education.”

Please note this massive new state tax might end any interest star athletes like Chicago Bears Quarterback Jay Cutler, Chicago Cubs Pitching Star Jon Lester or Chicago Bulls Guard Derek Rose from living in our state. By our math, the cost of this tax to such athletes would be over $1.2M each year of their short careers. In our view, you can buy a pretty nice estate in Merrillville, IN or Racine, WI with $1.2M a year and avoid some or all of the new proposed tax. In our view, such a tax would basically empty out Trump Tower and the successful folks that reside there—one wag in our office asked that if he is successful in “taxing the successful,” Speaker Madigan should have Trump Tower dug up and carefully moved across the state border. We would prefer to have stock brokers, surgeons, entrepreneurs and lots of hard-working and successful people want to live in our state and not give them an enormous impetus to leave and bring their businesses and jobs with them.

This also leads to another reason we are chagrined and disappointed with Speaker Madigan—he clearly understands to raise our taxes in such fashion, he needs to change the IL Constitution. He is more than willing to fight to do so to try to fund the multi-billion-dollar mistakes he has made in the forty-plus years he has been in our General Assembly. When it comes to reforming our laws on the hilariously underfunded fake pensions that are choking IL government, Speaker Madigan proposed and enacted two laws to reform the fake pensions and post-retirement healthcare costs for state workers. His daughter, Lisa Madigan is a diligent and brilliant jurist who basically was run out of court twice with overwhelming and unanimous Supreme Court majorities who all agreed such legislative changes from her father violated the IL Constitution. The only way to reform fake pensions and growing health care costs for state retirees is an emergency Con-Con or Constitutional Convention or a proposed and sweeping amendment to the IL Constitution. If anyone can do that, Speaker Madigan can—the question is will he?

Please Note This is a Respite But the Work Isn’t Over In Bringing IL WC Costs Down

We caution our readers on both sides of the WC matrix—next year in October 2016, the Oregon WC Insurance Premium Ratings will be published and literally everyone in this industry and our legislature is going to be watching. It is our strong hope new IWCC chair Joann Fratianni and her team remain sensitive to the needs and wishes of the IL business and government community. IL WC needs to be in the middle of the United States and competitive with all states around us. We also hope the great folks who regularly meet and discuss/debate judicial issues with the local Circuit Court judges who handle/decide WC claims and the august members of the IL Appellate Court, Workers’ Comp Division get the same message.

Right now, Governor Rauner has a political “war chest” of at least $34M and he is ready, willing and able to use it to create an IL legislature in his image and likeness in the next seven years or so. Bruce Rauner is a brilliant manager and executive. He is used to getting his way and is going to go to great lengths to improve our state. If and when he gets control of the IL General Assembly in either two or four years, we hope workers’ comp is a distant memory for his whole team, as IL WC should already be reasonable, professional and competitive in considering claims and doling out the crucial benefits injured workers need.

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

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Synopsis: Dr. David Fletcher – Wrong Focus on IL Workers’ Compensation Debate

Editor’s comment: This is a guest article by Dr. Fletcher who is a businessman, physician, scientist and workers’ comp professional. It is being published with his permission and without any changes.

The State Journal-Register has been covering Gov. Bruce Rauner's plan to slash workers' compensation costs as part of his heavily self-touted re-engineering plan for Illinois. So far, the debate has ignored the doctors' perspective, including the burden of insurance carrier micromanagement of medical services, the costs of practicing medicine in Illinois, effect on patients because of a lack of access to necessary care, and lack of strategies by employers to realize cost savings by focusing on prevention of workplace injuries.

The Governor believes the fee schedule for medical payments in Illinois is higher than many other states, which, depending on how you define "many," is simply not accurate. In reality, "Medical payments per claim in Illinois were closer to the middle group of states," according to the April edition of the Workers' Compensation Research Institute CompScope Benchmarks. The legislature first imposed the medical fee schedule upon doctors in 2005, resulting in a 24-percent reduction in medical charges. The schedule was reduced again in 2011 by an additional 30 percent, and as a result of these changes the Oregon Department of Consumer and Business Services concluded Illinois experienced the steepest drop in medical costs in the nation.

The National Council on Compensation Insurance also concluded medical costs do not constitute the majority of Illinois workers' compensation expenditures. Despite these dramatic reductions in medical costs, workers' compensation insurance carriers continue to price-gouge with premiums increases rather than pass any of the savings onto Illinois employers. Workers' compensation insurance is now so profitable that 333 different insurers currently sell workers' compensation insurance in Illinois. The paperwork and other demands of workers' compensation far exceed that for privately insured patients; additional fee cuts to physicians will force medical providers to stop accepting workers' compensation patients. Immediately following the implementation of the 2011 workers' compensation reform, the Illinois Workers' Compensation Commission recognized that patient access to critical care was dwindling as a direct result of the 30-percent medical fee reduction, which dropped routine office evaluation and management visits well below Medicare rates.

On July 16, 2014, the IL WC Commission voted 9-0 to immediately raise evaluation and management office visit codes to at least Medicare levels to reverse the crisis ensuing from doctors' offices basically washing their hands of such patients because they cannot afford to treat them. In essence, Rauner is quick to blame workers' compensation industry shortcomings, with the message that benefits must be slashed to entice businesses to invest in the state of Illinois. His stance, on the contrary, should be focused on insurance industry oversight, as well as on employer awareness initiatives that promote wellness in the workplace and focus on the prevention of injuries.

The insurance industry offers a variety of reasons why premiums have not gone down. Enough with the excuses. The governor should not require further sacrifices on the backs of the injured worker and the medical community taking care of these workers without demanding insurance companies reduce premiums to reflect the prior reforms.

Editor’s note: One aspect of the recent proposed WC legislation that was kept under wraps until the very end of the debate were the proposed changes to the IL WC Medical Fee Schedule. If there are strong justifications to again review and modify the schedule, we hope there will be more debate and discussion on how to best do so.

We appreciate your thoughts and comments. We are happy to relay your best thoughts to Dr. Fletcher for his response.

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Synopsis: The Care and Feeding of Great Physicians in Medical Depositions—Can They Informally But Openly Videotape a Deposition with Their Cell Phone?

Editor’s comment: We hear one complaint over and over from physicians who have been deposed in litigation. They are tired of being confronted, yelled at and sometimes personally abused by attorneys on both sides of the fence. We want great physicians, surgeons and scientists to participate in litigation and we do not want them to be the subject of the slightest ill-treatment of any kind.

If an attorney participating in a medical deposition starts to raise their voice, ask insulting questions or otherwise act abusive, we are recommending the physician or any expert take out their cell phone, confirm for everyone in the room and on the record they are going to video the event, then stand the phone up on the table and make a video recording of the deposition. The recording could be saved to the physician’s complete file.

As another approach, attorneys on both sides could openly and informally video the deposition with the caveat they keep the recording in their own file, as all of it would be covered under HIPAA-GINA.

Whatever happens, we feel the request for videotaping should be in the notice of deposition and/or part of the agreement to take a deposition under the IL Rules Governing Practice before the Workers’ Compensation Commission. We suggest doctors include the request in their billing or correspondence confirming the setting of the date/time/cost of the deposition.

We are sure cell phone recordings would save the increased cost of needing a formal videotaped deposition but should also cause the attorneys to stop or end any abusive behavior, as there would be documentation of it. We feel the attorney who has retained the expert to be deposed should caution their opponent not to act in an abusive manner or potentially face sanctions.

Some of the abusive tactics we have seen in depositions are

•              An attorney continually telling the deponent only to answer “if they know” the answer—this is a tactic designed to coach the witness not to answer;

•              Frequent or endless objections to every question;

•              Instructing a witness not to answer important questions;

•              Repeatedly going off the record to delay;

•              Asking the deponent the same question over and over again.

By informally documenting all of this with an inexpensive cell phone video, it would be much easier for a Circuit Court judge or Arbitrator to rule on the behavior of the parties conducting the deposition. We would love to hear the best thoughts and ideas from our readers on this approach to medical or other depositions.

We appreciate your thoughts and comments.

5-18-15; IL Speaker Madigan Jamming IL WC Reform for a "Fail;" Is the Worker an Employee or Independent Contractor by Arik Hetue, JD; Are IL Gov't Fake Pensions "Unfundable?" and more

Synopsis: Springfield Update—IL Speaker Madigan to Jam WC Reform Legislation for a “Fail.”

Editor’s comment: As you read this, IL House Speaker Michael Madigan set two different “Committees as a Whole” in the Illinois House—a “Committee as a Whole” hearing is a combined hearing for all members of the Illinois General Assembly. In both such hearings, the testimony at the first hearing was directed at knocking down the proposed IL WC reforms with a second session designed to rail and rock against caps on medical malpractice claims or tort reform. It appeared to us the Illinois Trial Lawyers Ass’n effectively got control of the inner workings of the Illinois General Assembly to dominate the hearings and present their positions on either subject. The amount of testimony from the side of Illinois business was relatively limited.

Did this strategy work? Well, this morning the news was Speaker Madigan was calling the WC reforms for a vote on Thursday, May 21, 2015. What is odd about that announcement is the IL WC reform measures haven’t been reduced to actual legislation by their sponsors. All we have seen to date are media proposals from new Governor Rauner without any real language for the legislators to actually consider or seek to modify, as they always do. We assume Governor Rauner and his team continue to troll for WC reform votes from our legislators without having to actually write anything down.

What it appears may now happen is House Speaker Madigan is going to have his staff create and propose similar WC “reform legislation” so that can be called for a vote and then knocked out by the heavily Democrat-controlled General Assembly. Obviously Speaker Madigan feels he has little to no concern about any meaningful WC reform passing. We assume the expectations of Speaker Madigan in using this unusual tactic is to quell debate and get WC reform off the State’s agenda so they can move forward to deal with other issues that have been discombobulated by our kooky legislators in years past.

As we have repeatedly advised our readers, we feel the true WC reform in this state is going to come from our hearing officers at both the Arbitration and Commission level. If they start to handle “causation” or “major contributing cause” with a common sense approach, you don’t need WC legislative reform. If they start to handle the “traveling employee” concept consistent with the language of the IL WC Act that requires an accident to “arise out of” the employment, you don’t need WC legislative reform. Arbitrators and Commissioners can currently deal with impairment ratings as they feel best, even as they consider all the other statutory factors in the IL WC Act.

In short, we hope our administrators start to apply the current English-language version of the Illinois Workers’ Compensation Act and drive our State to the middle of the fifty United States and get workers’ comp reform off the legislative agenda. When that happens, Speaker Madigan and his troops can stop their shenanigans and public relations fluff.

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

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Synopsis: Is the Worker an Employee or an Independent Contractor? Recent Case Law Clarifies IL’s Position on this Complex Question. Thoughts and analysis by Arik D. Hetue, J.D.

Editor’s comment:  We have seen this scenario played out many times in the past, and business is always trying to navigate a very sticky wicket of how to have just enough control over a worker such that they will be classified as an independent contractor. Over the past 10 years, the rise of former trucking companies which style themselves as logistics companies who then farm out the driving to “independent” drivers was the most recent version of this intricate dance. Please, Illinois business, be careful when trying to tango with our law.

In the case of Steel & Machinery Transportation v. IWCC, published on May 1, 2015, the IL Appellate Court, WC Division confirmed, again, the more control over a driver a company asserts, the more likely the driver will be found to be an employee of the company. As many of our readers are aware, there is no bright line rule for this classification. In Illinois, as in many of our sister states, we resort to a multi-factor analysis to determine a driver’s status. Among the various issues to be analyzed are who is providing the insurance, how the driver is paid, who controls the routes, who decides the jobs, whether logos are in place, and a variety of other factors. We have seen in the past the primary factors will generally be the nature of the work, who controls the work, and whether the driver has independent WC insurance.

In  4-1 split decision, the Workers Compensation Division of the Illinois Appellate Court ruled a truck driver was entitled to our generous IL WC benefits after his injuries from a crash necessitated the partial amputation of his leg since he was an “employee” of the company that hired him to transport a load from Indiana to Wisconsin.

The facts were essentially uncontested – Driver Radomir Cvetkovski worked as an over-the-road truck driver and he owned his own tractor-trailer. In June 2005, Respondent Steel & Machinery Transportation contracted with Mr. Cvetkovski to transport a shipment of steel from Indiana to Wisconsin. After Mr. Cvetkovski picked up the load in Indiana, he drove his vehicle to a truck stop, and then went home for the weekend as the delivery was due on Monday. On Monday morning, he left to deliver the load, but during his transit to WI, he was in a severe accident and the result was a below-the-knee amputation to his left leg.  

Mr. Cvetkovski filed a claim for IL WC benefits, but Steel & Machinery disputed the claim, arguing it should be denied as Mr. Cvetkovski was an “independent contractor.” Please note his “independence” did not include the purchase of a policy of WC insurance to cover himself in case of a work-related loss or injury. An Arbitrator, the Commission, and the Circuit Court all agreed Mr. Cvetkovski satisfied the requirements to be considered an employee and awarded benefits.

Among the facts related to this finding, the most important tended to be in the area of control – while Claimant owned the truck he was driving, according to the Agreement between the parties, the truck and equipment used were for Steel & Machinery’s “exclusive possession, control and use for the duration of [the] Agreement.” Also – while Claimant was on driving routes, the testimony indicated he drove solely for Respondent during his years working with them, and he suffered negative consequences if he ever turned down a delivery. While he could technically work for other parties, the Agreement subjected this activity to a wide range of subjective hoops he would have to jump through and approval would be required before he could do so. While driving, he would be contacted every couple of hours by a Respondent dispatcher, who would direct routes and deliveries.

Going the other way, there were facts that lead to an inference Claimant was an independent contractor – specifically, his ownership of the truck, payment of upkeep for the truck, his per job payments with no tax withholdings, and the fact the company did not require him to submit to a dress code or appearance code.

In any case, this determination was a finding of fact – and as such, following the Commission decision, it could only be overturned under the business-dreaded “manifest weight of the evidence” standard. In light of the fact there were reasonable facts on both sides of the employee/independent contractor question, either decision by the Commission would have been sustained under the manifest weight standard. As any defense veteran knows, this is an extraordinary burden to meet.

Presiding Justice William Holdridge issued a very interesting dissent where he noted "under our court’s current interpretation of the law, it has become virtually impossible for a trucking company and an independent driver/lessor to structure their relationship in a way that reliably precludes a finding of an employment relationship, even if that is the clear and expressed intent of both parties." Justice Holdridge felt a more reasonable approach would be to adopt a position allowing a trucking company's compliance with regulations that require it to exercise control over a driver to not equate to evidence of the company’s control over the driver for the purposes of determining the driver’s contractor status. What this means for us in IL business is the more control, the more likely it is an employee status. Even if the control asserted is required under federal law. Please be very careful in how you handle such relationships.

Editor’s note: If this employer “forced” or otherwise required this claimant to have his own WC coverage and provide a certificate of insurance to them, there is a much stronger chance this driver would have been viewed as “independent.” It is our view, as the driver had no WC coverage, the reviewing court put the WC coverage on the company that had it. We tell all our clients and readers—never, ever hire a sole proprietor to work for you and allow them to “opt-out” of WC coverage. It can be financially disastrous to do so—if you aren’t sure, send a reply and we will explain further. Please note, this claim involved an partial leg amputation. The cost of such a claim could be $300K or over seven-figures, if the guy can never drive or work again. You may also note the claim has been pending for around 10 years—litigation costs are probably high.

An Illinois worker who is injured for an employer that doesn’t have any WC coverage for them can:

• Sue in Circuit Court for the injuries;
• Sue at the IL Work Comp Commission too;
• Any benefits received from either venue don’t offset;
• The employee can “pierce the corporate veil” and seek to go after the employer’s personal assets;
• It is a felony to operate in IL without WC coverage.

This article was researched and written by Arik D. Hetue, J.D. who can be reached at ahetue@keefe-law.com. If you would like to review a copy of this decision, please feel free to email him with any comments or concerns, or you can post them to our award winning blog!

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Synopsis: Another Quick Thought on IL Fake Government Pensions—It is Hard to Pre-Fund Them When The Multi-Million Dollar Benefits Are The Equivalent Of Winning the Lottery!

Editor’s comment: A reader sent us a quick note about articles being published across our state by Robert Rich who is the retired director of the Institute of Gov’t and Public Affairs at the U. of I.  If you want links, send a reply. His articles follow a tired theme—why doesn’t IL government simply “pre-fund” what is or will be due on the state government fake pensions? Trust us, that sounds simple but isn’t nearly that easy when you consider how lucrative the fake pensions are when the workers get to the money.

We assure you some of the fake pensions are simply “unfundable” if you understand the math. Pensions are supposed to be pre-funded with three sources—personal contributions, “matching” state contributions and investment income. When they are not pre-funded, the “pension clause” requires taxpayers to make up the balance after the sometimes retired worker leaves gov’t employ. So consider pre-funding one legislative fake pension. Just one. Please note the late Judy Baar Topinka was a legislator for six years. As a legislator, she made $60K a year and put in 10% of her salary to become vested in only four years of service. Her total personal contribution to the fake pension plan in six years was six years times $6K a year or $36K. When she passed, she was seventy years old. Her annual pension for six years of work was $150K or 2-1/2 times her highest legislative salary.

If Judy lived to 90 years of age, and lots of folks are living to ninety, she would have received $150K a year with annual 3% compounded increases over twenty more years. Her annual fake pension payout would have doubled to over $300K. In short, she would have received another $4-5M in that time. Try to get your head around Judy making a $36K contribution while working for us and then be entitled to literally millions and millions after working for us. As Mr. Rich’s articles validly point out, most of the “unfunded money” is “back-funded” and therefore comes from current tax dollars. The eventual payout to all Illinois legislators is the equivalent to winning the Lottery when you consider they can easily get millions for a four-year contribution less than $50,000.

To pre-fund or set aside what is needed to justify that much pension money for Judy Baar Topinka, the State of IL would have had to put about $500,000 a year or more into Judy’s pension fund every year she was working as a legislator. That is a LOT of pre-funding. There are 113 Illinois legislators and they change with great regularity. We assure you President Obama was in our General Assembly and is eligible for the same fake pension right now and can also receive millions over the rest of his life for his limited IL pension contributions.

We assure you this math is accurate. We are not annuitants, like Mr. Rich but we are sure for our State to pay out $4-5M in fake pension benefits over 20 years, you need to start with something like $3M or more. The current annual amounts being back-funded and annually paid to former Illinois legislators is over a quarter of a billion dollars a year and continuing to rise. In our view, our fake legislative pension program is designed to be “unfundable” and seems similar to legislators stealing our tax dollars to almost secretly get that much from us long after they have stopped working in the legislature. The judicial fake pension set-up is similarly shockingly unfundable and pays millions to each jurist after they have left the bench. As another egregious fake pension, City of Chicago school teachers only contribute 2% of their annual income to their pensions—in 20 years to become vested, they haven’t put one full year of salary into the “kitty.” That pension system is relatively “unfundable” costing Chicago taxpayers billions. Hard-working taxpayers hated welfare programs because folks got lots of your money for doing nothing. Why doesn’t that same ethic apply to fake government pensions?

Either way, while they are working for us, we don’t want to pay any legislator their annual salary and set aside literally millions in their four years of service to pre-fund these gigantic lifetime pensions. Illinois legislators aren’t full time employees—the legislature is in session about 50 days each year! Lots of them don’t have 100% attendance and show up when something important happens.

We vote Illinoisans consider Con-Con--an emergency constitutional convention and rewrite the whole thing. In making that recommendation, we would end the legislative fake pension program completely—there is no reason a part-time worker earns a generous lifetime pension with guaranteed annual increases after only four years of part-time service. And as a final note, we agree with Mr. Rich to the extent that we feel our IL Constitution should have a “taxpayer-protection” clause requiring any and all money used for a government pension should have to come from either the pensioners’ contributions or whatever the Government paid to match their money while they were employed by taxpayers.

Rant over—we appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Can the IL WC Community Help Dominic Secure His Forever Friend!

Editor’s comment: Please consider making a donation to Dominic’s GoFundMe account to aide in efforts to obtain a service dog. Dominic is an amazing 7-year-old non-verbal autistic boy who was recently diagnosed with seizures in January of 2015. It became very clear he needed to do more on a more personal level to help Dominic with his confidence and self-esteem. Research on service dogs followed and the family learned this was the right choice. This young man struggles on a daily basis to dress himself, bathe himself and almost daily suffers from self-injurious behavior because of his inability to be able to communicate. The family reached out to an organization called Argos Unlimited K9 who work with service dogs and they immediately told the family they would be able to help Dominic! Some of the things they will be able to assist Dominic with are

·         To help prevent him from wandering or running away by wearing a tether or barking to alert us of his whereabouts that are not safe.

·         To help with self-soothing during melt-downs. The tactile stimulation, whether by petting, hugging, or having the dog actually lie on the child, can help the child learn the skills of calming themselves.

·         Socialization including serving as a "social bridge", so as children and adults come over and ask about the dog, the child with autism is prompted to answer. The parent should not answer questions, but should refer all inquiries to the child. Thus with the dog, rather than having just the parent or teacher try to bring the child out of their own world, the entire community is talking to the child.)

·         4)The dog will wear Dominic’s communication device so that he will not have to travel to find it and he can communicate more easily.

·         5)Dominic has also show a great interest in water and the number 1 killer amongst children in children of the autistic community is accidental drowning. The service dog will be trained not only in water rescue but also to alert the family by barking if Dominic goes into the nearby lake in his subdivision or also gets into our bathtub without the family’s knowledge.

This is where you come in……the cost of a service dog is $12,000.00. Since starting their GoFundMe account the family has been blessed with donations from other family members, colleagues and friends and would like to keep the momentum going for Dominic. They would like to share with you a picture of their beloved Dominic and the service dog Jax who is in training now to hopefully come to the family within the next 18 months to help Dominic in his daily living. She will attend school with Dominic and be a lifelong companion to not only Dominic but the family. They want to thank you all should you consider making a donation!

The attorneys at KCB&A have already donated and may donate even more. Consider $10, $25, $50 or $100—give what you feel best. To contribute to this great cause or for more info, go to http://www.gofundme.com/lk29y8

5-11-15; Let's Have Our Administrators Move IL WC To The Middle and Not "Race" Anywhere; IL Fake Pensions Need Constitutional Congress for Reform; Shawn Biery, JD, MSCC on CMS Update and much more

Synopsis: IL Speaker Madigan Urges Our Legislators Not To “Race to the Bottom” in the Illinois Work Comp Arena.

Editor’s comment: In what some commentators view as a legislative publicity stunt, Illinois House Speaker Michael Madigan called a rare “Committee of the Whole” to allow testimony from folks all across the United States in what may have been an effort to slow or block proposed changes to our workers’ comp system by folks loyal to Governor Rauner. As much as Speaker Madigan argued Illinois shouldn’t “race to the bottom”  or get  too cheap when it comes to work comp reforms, the other side says they want Illinois to continue to work to the middle of all the United States to be competitive and business-friendly. Epitomizing the approach of Illinois labor, Democratic Jay Hoffman agreed everyone wants Illinois to be more competitive in the WC field but, in his words, “not on the backs of injured workers.” We hope the sore backs of injured workers also survive all the public relations fluff coming from our Capitol.

The Committee hearing featured a former Indiana work comp official who is now a Plaintiff/Petitioner attorney highlighting how several injured Illinois workers would have been less happily treated if injured in Indiana and subject to that state’s second-lowest-WC-costs-in-the-U.S. benefit structure. In response, Greg Baise, the current president of the IMA or Illinois Manufacturers’ Association asserted he didn’t want Illinois WC to turn into a copy of the Hoosier state’s WC program. Greg indicated “….what we’re looking for is a fairness in the system.” Baise felt the number one WC complaint his organization regularly hears is the growing cost of workers’ compensation in Illinois in relation to our sister states.

The Committee as a Whole testimony included lots of workers injured on the job in other states, including Oklahoma as well as Indiana. The testimony wasn’t specifically directed at the current proposed WC changes from the Rauner administration. Instead the focus of the endless and somewhat boring testimony was implicitly directed at keeping IL benefits moderate to higher than other states.

A group of employer associations indicated they don’t want to reduce workers comp benefits for injured workers, but they do want to root out what they asserted was work comp “fraud” by increasing the causation standard to insure an actual injury occurred at the workplace before any benefits were due. Just before the full-day joint House-Senate hearings, several Illinois business groups held a press conference applauding the focus on reforming workers’ comp in Illinois. However, many were critical the legislative hearings were too one-sided.

Stephen Schneider, the American Insurance Association (AIA) Midwest region vice president testified on the effects of the 2011 workers’ compensation reforms and urged further reforms might be needed.  Mr. Schneider represented a coalition of insurers which includes AIA, the Illinois Insurance Association (IIA) and the Property Casualty Insurers Association of America (PCI). His testimony outlined a 2014 report by the Illinois Department of Insurance which ranked Illinois as the most competitive state in the country for workers’ compensation insurance. The study indicated there are 333 insurers authorized to compete for WC insurance business. Schneider also indicated further reforms may improve the system for both employers and employees. He feels additional WC reforms should include addressing abuses associated with the practice of dispensing prescription drugs by doctors or in non-pharmacy settings. He also indicated there is a need for a renewed examination of the present IL WC medical fee schedule, suggesting as an alternative the use of a Medicare rate-based schedule, as many other states use.

Our vote on all of it is stop worrying about the legislative branch of government and focus on WC administration and our administrators. We feel the IL WC system needs to allow the current IWCC Arbitrators and Commissioners to lead our  troubled state and its WC claims to rank in the mid-teens or twenties in the Oregon WC Insurance Premium report that will be posted next year. Solid professionals like Josh Luskin, Mike Brennan, Kevin Lamborn and Ruth White are knowledgeable and moderate WC veterans who will require “real” accidents and disability/impairment to be demonstrably present before they consider significant awards. They can’t do so unless and until we give them the chance to show us their stuff. As we told you last week, we don’t need new legislation, we need better thinkers to implement the IL WC Act as written.

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

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Synopsis: Couldn’t IL House Speaker Madigan Paid for Coffee at Starbucks® or Panera® and Informally Learned How the IL Supreme Court Would Rule on the Fake Pensions Speaker Madigan Helped Create and Now Can’t Change?

Editor’s comment: Speaker Mike Madigan has been around the IL General Assembly for almost half a century. He is also the Chairman of the Democratic Party of Illinois. He has been a member of the Illinois House since 1971. If you do the math, he has been around for everything financially bad that has happened in our state government for 44 years and still counting. He is an honest man and strong personality but you will never see or hear him take credit or blame for anything. If you think we are overstating this and being unfair, we ask—how do you justify being the long-time and dominant leader of a state government that is over $100,000,000,000 in debt?

The silly thing that just happened is a bill passed in 2013 by Speaker Madigan to “reform” Illinois’ fake pensions was just knocked out by a unanimous IL Supreme Court. The august members of our highest Court affirmed the IL Constitution’s “Pension Clause” that we call the “stick-it-to-the-taxpayers” clause. Basically, if the legislature, in Madigan’s wisdom, wants to give billions to state workers when they retire, taxpayers are stuck with that decision and can’t change it without a change to the IL Constitution.

You might recall the IL Supreme Court recently ruled the lifetime healthcare benefits paid to any IL state government worker who is vested in their fake pension cannot be changed by the legislature. Retired IL State workers don’t have to pay a nickel for full and lifetime group health coverage; only you and I do. The legal fees for fighting the bill to try to change the lifetime cost of healthcare for IL government workers is $1.5M to the attorneys for the government workers. Guess who has to pay the legal bills on both sides? You and I do.

Despite watching his daughter completely lose that debate, in 2013, Speaker Madigan supported and passed a bill to slightly reform IL government pensions. Lisa Madigan, our plucky IL Attorney General fought to have both the earlier healthcare reforms and the current pension “reforms” stick and was basically hooted out of court on both occasions. The combined cost of Plaintiff legal fees in the dual losses for IL taxpayers is going to be around $3M. Ouch.

One of the many problems with this morass is IL Democratic Party Chair Mike Madigan has met, vetted and clearly knows the Democratic Justices on the IL Supreme Court. We ask the rhetorical question—couldn’t he have sprung for coffee to ask them the informal question about how they felt about the “Pension Clause” and what the chances of getting the fake pensions reigned in? Did we really have to fight this through the Circuit and now Supreme Court and blow $3M of the taxpayers’ dough to summarily lose?

IL Legislative Fake Pensions Can’t Truly be “Funded”—Can We Dump Them?

For everyone who is interested enough to read it, let’s look at just one fake pension that you can’t and won’t ever make sense of—legislative pensions. Right now, IL legislators make about $80K a year. Their pension contribution for a married legislator is about 10% of that income or $8K a year. They only have to be a legislator for 4 years, yes, 4 years to be fully vested. That means they only have to put in $32K in the fake pension program to be fully vested. When they reach the right age, their pensions start at 85% of the highest pay or $68K a year. You may note they get their entire contribution back in six months of retiring. They also get 3% compounded increases each year guaranteeing within four or five years, they are getting as much as they made working as an IL legislator or more. After something like 20 years, their pensions will be double.

How about we pay legislators when they legislate and stop paying them when they stop working for us? Does that seem too hard to understand? Can we consider a constitutional amendment to protect taxpayers so we only have to pay government workers when they are working in government and not the rest of their lives? What rhymes with welfare?

When you hear anyone complain IL State Government doesn’t pay enough to contribute to such pensions, please note such pensions are almost unfundable—by that we mean, our state government would have to pay their legislative salaries at $80K a year and probably add $400-500K a year for the four years to have enough of a kitty to pay them the amount they would be due on an annual basis following retirement. The math on those amounts cannot be challenged—it is immutable. We don’t feel Illinoisans understand how much these pensions truly cost. The current annual cost of funding these “unfunded” pensions is around a quarter of a billion dollars and continues to increase. We assert no state pays that much to its legislators and Illinois shouldn’t either.

In our view, all IL state fake government pensions need to be completely retooled. In our further view, as the IL Supreme Court has found the “Pension Clause” to be the irresistible force or the immovable object, the entire IL Constitution has to be reconsidered on the issue of fake pensions. We appreciate your thoughts and comments.

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Synopsis: CMS Appeal Rights Webinar Breakdown—What We Learned With Regard to Medicare Second Payer Appeals.  Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: As reported several weeks ago, 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. TO REITERATE—the rule is effective now and applies to demand letters issued on or after April 28, 2015.  

Again recapping, 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. There are six steps in the new appeals process and at each level you access, there will be a letter of instruction on procedure to move to the next step if there has not been some level of satisfaction with the result of the prior level of appeal.

The appeal process will be formally applied to the “Demand Letter”, and is not applicable to the initial determination or conditional payment letter because that letter is technically not a demand letter. We correctly noted the six levels in our prior update as:  

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.

Some other important details covered in the call include:

Ø  Monthly interest will accrue—so we recommend you issue payment for any undisputed amounts so you avoid interest being assessed (assuming you prevail on the appeal of the disputed amounts). Interest would accrue on the amounts being appealed if you do not prevail.

Ø  You need to make a swift decision on whether you wish to appeal—the timing starts rapidly and you are out of luck 120 days from initial determination. If you fail to respond in the time frames given, you lost your right to appeal.

Ø  You must have Proof of Representation if you are representing the plan and it must be current within a year of the appeal. The POR must be submitted with the appeal if not submitted prior to the appeal.

Ø  You must also submit a cover letter and specify the exact issues you are appealing such as relatedness of services, amounts alleged, verification of payments already paid the provider, etc.

Ø  Causation is not CMS’ concern so they don’t care if there is not a determination of liability in a disputed settlement. We interpret that to mean that if you dispute the conditional payments in a case you settled on a disputed basis, you should expect to be liable for the conditional payments because “causation is not CMS' concern” and they only want their money back.

It was also highlighted 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.

It remains 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.

While the process was fleshed out somewhat, we still believe the process has pitfalls and gaps and how well the appeals process will work is still to be determined. 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.