4-2-2018; Understanding Medical Privacy Rights in Workers’ Comp Claims; Kevin Boyle, JD on Important New Indiana WC Legislation--a Must Read and more

Synopsis: Understanding Medical Privacy Rights in U.S. Workers’ Comp Claims. Thoughts and comments by Gene Keefe, J.D.

Editor’s comment: HIPAA or the Health Insurance Portability Accountability Act first became U.S. law way back in 1996. In my view, that was a game-changer for all WC claims handlers and risk managers. The goal of HIPAA was to insure records of medical care and billing were only provided to those who needed to see the records and bills on a “need to know” basis.

HIPAA was intended by the initial drafters to allow electronic transmission of medical records and bills with safeguards for privacy. HIPAA first came about from the need to create standards for the management of electronic medical records/bills within the health care industry. Its purpose is to allow the safe transfer of medical information from one health insurance company to the next, and from one health care provider to another. It is very odd to confirm medical records and billing are still not fully computerized—the WC industry on both sides still struggles for months and sometimes years to get paper medical records when everything should be done on a high-speed, need-to-know basis.

The HIPAA Privacy Rule plateaued in 1999, and required safeguarding of patient information against unauthorized access and disclosure. Since 2003, the HIPAA Security Rule was published and subsequently the HIPAA Enforcement Rule and Breach Notification Rule were enacted in an effort to keep up with technology and meet the demand of patient privacy. In the workers’ compensation arena this means obtaining and securing medical information within the HIPAA rules, as I outlined below.

How are HIPAA and Work Comp Linked?

Workers’ comp’s highest claim cost, on a per-claim basis, is almost always medical care. The cost of surgery and prescription medications continues to soar. Medical costs and processing will continue to be a major and growing factor in all U.S. WC claims handling.

The flow of records and bills from the medical providers to the WC insurers needs to start on the date of loss and continue until claim closure. All sides to a work injury/exposure need to cooperate and coordinate if that is to occur. If there are delays or dysfunction in medical record transmission, injured workers suffer and go to lawyers and the WC Commissions and Boards to complain and complain more. Key to timely and efficient processing of medical bills are records confirming the treatment is reasonable, necessary and related.

HIPAA’s Privacy Rule allows workers’ compensation insurers, third-party administrators and employers to obtain necessary medical information to manage workers’ comp claims. The Privacy Rule for Workers’ Compensation was designed to provide necessary information needed to manage a claim. State laws, in litigated claims, allow for issuance of subpoenas to obtain full medical records and bills as needed.

Merge a HIPAA Release Into Your Incident Reporting Protocols

My law partner, John Campbell and I drafted and promulgated one of the best HIPAA-compliant releases anyone could ever use in a work comp claim. Our HIPAA release is widely used across the country by readers like you. If you get our form, we do recommend you consult with local counsel if you have claims outside IL, IN, WI, IA and MI, as we can’t provide legal advice in the other 45 states. That said, if you want a complimentary copy of our HIPAA-compliant release, send a reply.

The best way to implement a HIPAA-compliant release is to take your incident-reporting form and add the HIPAA release language to it. In this fashion, you will get the worker’s report of the incident to relay to your carrier/TPA and you will have a signed HIPAA release facilitating the smooth flow of records and bills for rapid processing.

Please note the injured worker or their attorney can later withdraw their consent to access to medical records and bills under HIPAA. Federal law allows it. If withdrawal of a HIPAA consent happens at any time, what you then need to understand is in the paragraphs below.

What is the Workers’ Comp “Exception” to HIPAA?

The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers/TPAs, workers’ compensation administrative agencies or employers. These entities need access to the health information of individuals who are injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. Generally, this health information is obtained from health care providers who treat these individuals and who may be covered by the Privacy Rule. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation purposes in a number of different ways.

If you

·        Don’t have a signed HIPAA release in your work comp claim file or

·        The injured worker or their attorney withdraw the HIPAA consent

you and your claims handling then fall into this odd “workers’ comp exception” to HIPAA where you might be able to get records and bills by confirming you need them for a work comp claim. In such a setting, subpoenas may be issued to get needed records and bills.

On the other hand, if you don’t have a valid consent, you may not be able to review records and bills, as the medical providers may balk at providing needed information. You also have to consider the person who makes the game-changing decision to want an injury or illness to be work-related is the worker—if they don’t want a clear work injury to be a work comp claim, the “protection” to you from the WC exception to HIPAA becomes a challenge. If the worker doesn’t want you to know they have a serious disease or other medical condition and decides not to put forward a work comp claim, you can’t and shouldn’t seek medical records without a signed HIPAA release. For that reason, I don’t recommend clients rely on the WC exception—get a signed HIPAA release as part of the initial investigation of all incidents and keep it in your file.

Our advice to all of our KCB&A readers is to work hard, follow HIPAA or the “exception” to get what you need to manage a claim from a medical perspective. Seek cooperation for all injured workers early and often with a goal of helping them to full or “best possible” recovery. Make it clear to the injured worker and their attorneys where appropriate to let them know you are always being audited and you can’t pay medical bills “in-the-blind,” you need to have supporting records or the medical bills will and have to sit. Future medical authorizations/approvals are also going to sit until you have needed documentation. Make your claim needs clearly known to all sides.

HIPAA rules are constantly being amended, but each governs who, what and when someone can receive medical information on an injured workers’ claim for benefits. Please remember HIPAA also mandates destruction/shredding of WC claim files at the end of handling a claim by any work comp vendor, including lawyers on both sides.

If you have questions or concerns about HIPAA and medical privacy in work comp, please send a reply. We appreciate your thoughts and comments. Please post them on our award winning blog.

Synopsis: Indiana’s New Statutory Worker’s Compensation Changes, Additional Regulations and Penalties for Employers and Insurers. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Two important worker’s compensation bills were signed into law last week by Indiana’s Governor that you need to know about.

First, Indiana Senate Bill 290:

§  Requires Employers to pay benefits within 30 days of an Award being issued and imposes civil penalties against Employers that do not pay benefits with due: $50 for the first offense, $150 for the second, and $300 for the third offense

§  Changes the penalty against Employers that fail to provide notice of work comp coverage to $100 per day, instead of $50 per employee.

§  Allows Employers that have mobile or remote employees to convey notices and information about workers’ compensation coverage to those workers in an electronic format or in the same manner as Employer conveys other employment-related information.

§  Provides that a permanently, totally disabled worker must reapply to the second injury fund for a wage-replacement benefit every three years instead of every 150 weeks.

§  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day. 

§  Specifies that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the U.S. Occupational Safety and Health Administration's regulations.

These changes will be effective July 1, 2018.

Second, Indiana Senate Bill 369:

§  Adopts a drug formulary to restrict opioid prescriptions and abuse. Indiana is adopting the MCG Health’s Official Disability Guidelines which uses a preauthorization process where doctors cannot prescribe “not recommended” medications unless the insurer first approves. It is not yet clear how that process will be implemented by the Indiana Worker’s Compensation Board, especially since insurer utilization reviews are generally disfavored to dispute medical provider recommendations.

These changes will be effective July 1, 2018. However, SB 369 also provides that there will be a ban on reimbursing prohibited drugs effective January 1, 2019, but injured workers taking those meds before July 2018 may continue to do so until January 2020.

Stay tuned for more. If you have questions/concerns about Indiana workers’ comp, general liability, MVA or employment law issues, please contact: kboyle@keefe-law.com

3-26-2018; Chicago Bears WC Program Hits the Headlines in Forbes Magazine with Quotes from Gene Keefe; Kevin Boyle on an Important Indiana WC Claims Caveat and more

Synopsis: Chicago Bears WC Defense Program Hits the Headlines in Forbes Magazine—I Am Not Sure What the Buzz Might Be.

Editor’s comment: Forbes Magazine published an interesting article that highlighted the fact the Chicago Bears spent about $13M in work comp costs over 18 years. With respect to the authors, I don’t consider that a lot of money for a professional team that participates in one of the most brutal and dangerous events on the planet. To my understanding, most professional football teams have lots more “disabling” injuries than players because the players get hurt, hustle hard to recover and then return to work to be injured/disabled again.

To my understanding, almost all professional football players retire, at least in part, due to disabling injuries. The only reason they probably aren’t wildly interested in workers’ comp benefits is the limits on such claims for permanency isn’t close to the salaries many of the players garner. Several Chicago Bears players make close to or more than $13M a year, every year.

The Forbes Magazine article noted, in Illinois, workers injured on the job including professional athletes, can file wage-loss differential claims, entitling them to two-thirds of their wage loss (with a cap) receivable to age 67, or five years after the claim is made, whichever is later. The money is paid by the professional team’s workers' compensation insurance carrier or self-insured program.

The annual statutory cap on such wage-loss awards limits professional athletes and other employees to no more than the average weekly wage in Illinois, but anyone earning $1 million or more per year, such as an NFL player, would be eligible for the current maximum annual wage loss benefit of $55,971. The wage loss payouts are not taxable. And for most professional athletes in their 20’s and 30’s, wage loss benefits to age 67 could be well into the millions.

A professional football team is particularly susceptible to such compensation claims because, apart from the violent nature of the game, teams carry 53-man rosters, with many players coming and going with great regularity throughout the season due to the strain of competition and injuries.

As one of the leading national authorities on workers’ comp from my position with Keefe, Campbell, Biery and Associates, I was quoted by Forbes as saying workers’ compensation to wealthy athletes is “warping” the system. I was further quoted to say “It doesn't match reality. And the Bears just don't fight the cases anymore. They settle instead of going to court and making the player a hero.”

I commented on the claim of Roger Stillwell, who had a limited NFL career with the Bears in the 1970s that was ended by injury. I pointed out Stillwell later became a travel agent making $400,000 per year but still applied for and received lifetime workers' compensation for his football injury. I confirmed Stillwell's case was one of the first to call into question lifetime wage loss compensation for professional athletes. One has to wonder if someone making $400K a year needs further lifetime compensation due to prior football injuries.

On the other side, Forbes reported George Atallah of the NFL Players Association told The Associated Press last year that workers’ compensation benefits “provide a lifeline to players whose athletic careers end suddenly.”

According to Forbes, the “bench is deep” when it comes to former Bears players looking for compensation, with hundreds having put in for payments, according to state records.

·        Lamarr Houston, a linebacker, said his right knee was injured in a 2014 game and his left knee in 2016.

·        Another linebacker, Jon Bostic, said his back was injured in 2014 and his right ankle in 2015.

·        Defensive end Henry Melton suffered a lower-back injury in 2012 and a concussion in 2013, according to records.

Many other former players have settled their cases, including Brian Urlacher, Devin Hester, Tommie Harris and Charles Tillman. In Urlacher's case, he settled with his former team in 2017 for $550,000, for claims filed between 2009 and 2014, covering his neck, back, hands, wrist, legs, knees and shoulders. Urlacher’s settlement might have been heightened by the fact he was a close personal friend with a workers’ comp Plaintiff/Petitioner lawyer.

Cade McNown was a disappointment as a Bears quarterback in the 1999 and 2000 seasons, but his shoulder injuries netted him a $220,000 settlement in 2006.

The largest amount for a single injury in recent years was $400,000, given in 2014 to wide receiver Johnny Knox for a 2011 spinal injury that ended his career.

Forbes reported there have been 458 compensation cases filed against the Bears since 2000, most of which involve players, with the rest involving off-field employees. In that period, the team and its insurer have paid at least $12.8 million in settlements. I consider that a low amount for 18 years of claims brought by professional football players.

Last year, the Illinois Legislature considered a bill that would have prohibited wage loss compensation payouts to athletes beyond age 35. The Chicago Bears, Bulls, Blackhawks, White Sox and Cubs all supported the change. The bill was bundled with a compromise of other proposed WC and other laws, set up so all the bills passed or none did; the measure failed to make it through the goal posts.

Forbes quoted Jay Dee Shattuck, a longtime WC guru with the IL State Chamber and a lobbyist with Shattuck and Associates Consulting who described the bill as an attempt to “bring back some sanity to IL Workers' Comp law.”

Collective bargaining arrangements can also provide compensation for injuries. Please note the math above is a strong reason to avoid making college football players into paid athletes—the initial and increased costs to colleges/universities could be dramatic.

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

Synopsis: Important Claims Caveat from Kevin Boyle, KCB&A’s Indiana Defense Team Leader—Always Remember to Check for Employee Bonuses When Calculating TTD in Indiana.

Editor’s comment: The Indiana Court of Appeals recently issued an important ruling to remind us to include bonuses when calculating TTD benefits for Indiana worker’s compensation claims. 

In Midwest Equipment & Supply Co., v. Garwood, 87 N.E.3d 33 (Ind. Ct. App. 2017), the employee received a $20,000 profit sharing bonus and also a $1,750 shipping bonus that was tied to the employee’s performance in the warehouse.  Employer calculated his AWW using the regular wages earned in the 52 weeks immediately preceding his injury, but did not include two large bonuses in the calculation.

The Court of Appeals rejected the employer’s contention that those bonuses should not be included in the AWW because they were not governed by a written agreement, were not automatically paid, were awarded through discretionary management decisions, and the $20,000 profit sharing bonus was not based on his output or performance.

The Court held that “true as those statements may be, the statute defining average weekly wages specifies only one condition for its calculation – that the calculation include the earnings of the injured employee during the period of fifty-two weeks immediately preceding the date of injury. I.C. 22-3-6-1(d).” For Indiana AWW calculations, unlike Illinois where the Illinois worker’s compensation statute specifically excludes bonuses from its definition of AWW, Indiana’s statute does not exclude bonuses from the calculation of average weekly wages.

Finally, the employee also argued that his award should be increased by 10% for the employer’s frivolous appeal. The Court rejected that argument stating the issue presented upon appeal was not frivolous, but rather a genuine legal issue that required clarification. However, the award was increased the standard 5% since the Court affirmed the Full Board on the employer’s appeal.

3-12-2018; Can An IL Employer/WC Claims Handler Bring Claimant Back to Light Work At a Charity?; Matt Wrigley JD Reports on an Important Federal EPLI Ruling and more

Synopsis: Can An IL Employer/WC Claims Handler Bring a Claimant Back to Transitional Light Work At a Charity? Can You Cut-off TTD If They Refuse?

Editor’s comment: I am asked this question all the time. We had a reader send us a brilliant article by an excellent IL defense attorney, Jessica Bell that was published in the Illinois Association of Defense Trial Counsel Quarterly. I salute her hard work and acumen in this growing area of U.S. workers’ compensation law.

This situation arises when an employee is injured at work and cannot immediately return to their former job due to medical restrictions resulting from the work injury. The employer or claims manager assumes the work restrictions are temporary and should be lifted as the worker’s medical condition improves, enabling the employee to return to his former job at the same employer or possibly another available position. In the interim, some employers, particularly in union settings, have many hurdles to accommodate restricted work.

Getting the injured worker back to any work is better than letting them sit home and watch the television. In my experience, many injured workers try to “disappear” and stay out of view. This “charity-volunteer-job” situation offers benefits to the employer and the employee, ranging from reduced workers’ compensation for the employer, to getting an injured work to take a shower, travel to work with others and remain somewhat off the dole. To me, the concept is a win-win for everyone.

The article mentioned above reviewed whether an Illinois employer may effectively offer transitional light duty work through another entity, say, such as a charity while also paying TTD. Many IL Claimant attorneys support the concept and want their clients to cooperate. Sadly, some Claimant attorneys are willing to fight over it to see what the Arbitrator and IWCC might do.

Other states have examined this scenario and several have adopted what is commonly referred to as temporary transitional employment (TTE) provisions, whereby the employer is permitted to return the employee to light-duty work with another business while the employee’s condition heals. Ms. Bell’s research documented at least eight states have already adopted specific TTE or similar programs via statute, while other states permit TTE programs based on their workers’ compensation statute’s current wording. We hope the secret-powers-that-control-the-IWCC consider enacting legislation to incorporate or delineate a rule about it and avoid confusion and unnecessary litigation.

One important aspect of this TTE concept is to consider obtaining the opinions of a certified vocational rehab counselor or CRC who is familiar with the idea and can provide an expert report backing up the concept. The CRC report doesn’t need to be 500 pages—short and to the point works best. Please remember the IL WC Act/Rules contemplate a “120-day” voc rehab rule, requiring both sides to agree on a voc plan to get a moderate to severely injured worker back to any work. The plan is supposed to be considered by both sides and approved via the Arbitrator. Anyone off 120 days on a continuous basis after an accident is, in my view, a moderate to seriously injured worker. If you have an expert report from a CRC or certified rehab consultant confirming the worker can and should be doing something, even in a charity setting, and get them off their couch, you have a much better shot at Arbitrator approval.

The article mentioned above carefully chronicles widely differing IL WC outcomes and this concept is going to remain a transitional idea in our nutty State for the time being. Under the current administration, I do feel a well-documented TTE offer could “work” and many Arbitrators might informally confirm their concerns or formally deny disputed TTD benefits if the worker remains adamant about staying home with their TV remote and won’t volunteer at a charity while getting TTD. I am somewhat sad to report if a Democrat moves into the Governor’s mansion in the fall, TTE may disappear for four years.

If you want defense legal guidance on implementing a TTE program including referral assistance or experts, reply or call me. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Document, Document, Document Employee Absences—It Takes 1 Minute. Employee Fails to Establish her Termination Violated the FMLA, ADA, and Rehabilitation Act. Research and analysis by Matthew Wrigley, J.D., licensed in IL and MI.

Editor’s Comments: In Guzman v. Brown County, No. 16-3599 (March 7, 2018) E.D. Wisc. Affirmed, a telecommunications operator previously diagnosed with sleep apnea was terminated by her employer after repeatedly failing to report for work when scheduled. The employer maintained a progressive disciplinary system which escalated from verbal warning to written warning, suspension, and termination. Under this policy between 2004 and 2013 the employee received nine verbal or written warnings regarding use of vacation or casual time, failing to complete proficiency tests, and failing to report for work. Due to two additional infractions which included tardiness and failure to report for work the employee was suspended and eventually terminated.

The employee sued the employer under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act alleging interference, retaliation, and discrimination. The trial court granted the employer’s request for summary judgment finding no genuine dispute as to any material fact. This resulted in judgement for the employer, and a dismissal of the suit. The employee appealed this decision to the Seventh Circuit Court of Appeals, which affirmed summary judgment in its entirety. 

The Seventh Circuit initially addressed the employee’s charge of FMLA interference and found she failed to introduce any evidence to show she suffered from a “serious health condition” at the time of her infractions. In addition, the Seventh Circuit found no evidence to establish the employee provided either actual or constructive notice of her asserted need for FMLA leave. Finally, the Seventh Circuit found it undisputed the decision to terminate the employment relationship was made before the employer had knowledge of any serious health condition or request for FMLA leave.  With regard to the charge of retaliation under the FMLA, the Seventh Circuit held the employee failed to present evidence her termination constituted an “adverse employment action” which occurred because she requested or took leave. In other words, the Seventh Circuit found that the employer had no prior knowledge of the employee’s health issue to link up the employee’s claim of retaliation for requesting FMLA leave. 

Addressing the discrimination charges under the ADA an Rehabilitation Act the Seventh Circuit held the employee failed to present evidence to show her termination was a result of an alleged disability rather than her violations of the progressive disciplinary system. With regard to the employee’s charge of failure to accommodate, the Seventh Circuit held no evidence was presented to show the employer was aware of an alleged disability prior to the termination. The Court specifically held “after the fact requests for accommodation do not excuse past misconduct.” Finally, with regard to the charge of disability retaliation under the ADA the Seventh Circuit held the employee presented no evidence to establish a causal connection between her engagement in a statutorily protected activity and an adverse employment action. 

The research and writing of this article was performed by Matthew Wrigley, JD. He can be reached regarding employment law or workers’ compensation issues that you face at mwrigley@keefe-law.com

EVENT

Dealing with Employees from Application to "Z" you Later | March 19 | 12-2pm | Johnson & Bekk, Ltd., Chicago

Who Should Attend?

HR professionals, employment lawyers, and anyone who manages personnel are invited to Dealing with Employees from Application to "Z" You Later on March 19 where our speakers will discuss how and where to advertise for positions, the do’s and don’ts for selecting and interviewing candidates, proper considerations for hiring decisions, how to properly document performance and other disciplinary issues, and when and how to terminate employment.

Schedule

11:30 a.m. - 12:00 p.m. Registration and Light Lunch

12:00 - 2:00 p.m. Dealing with Employees from Application to "Z" You Later

Presented by: Kimberly Ross, FordHarrison LLP and Bradley Smith, Keefe, Campbell, Biery & Associates, LLC

The program will review through the “life” of an employee from a management perspective. Many employers hire managers and supervisors of employees who know the business end of the job, but who have no training or experience in managing people. Many employers also think about the life of an employee in terms of hiring and firing only. This program will explore the infancy of the employment relationship, beginning with proper advertisement for the position, soliciting, collecting and reviewing applications, interviewing, hiring, performance reviews, disciplining, and termination. We will discuss state and federal laws that must be considered, as well as general best practices. We will also explore some of the pitfalls that may be encountered with social media and the Internet, including a discussion of the type of information employers can and cannot consider when making employment decisions. 

CLE Credit

The IDC has also been approved for 2.0 hours of CLE credit for this program in the state of Illinois. We will apply for the following CLE credit in other states:

• Indiana 2.0 CLE; 0.0 Professionalism
• Iowa 2.0 CLE; 0.0 Professionalism
• Missouri 2.4. CLE; 0.0 Professionalism
• Wisconsin 2.4 CLE; 0.0 Professionalism

Registration

This event will be held at the offices of ISBA Mutual Insurance Company, 20 N. Clark Street, Ste 800, Chicago and via TELECONFERENCE. Please indicate your attendance method (in-person or via teleconference) on your registration form. Registration for this event is $25 for IDC members (Non-member $50).