4-23-2018; Shawn Biery Confirms Change to IL Published Max PPD Rate; Kevin Boyle Updates IN Nurse Case Manager Guides and more

Synopsis: Illinois WC PPD MAX Adjusts DOWN!! Analysis and comment by Shawn R. Biery, J.D.

Editor’s comment: As we have noted from time to time, the Illinois Workers’ Compensation Commission or IWCC sometimes makes an adjustment to published WC rates after the formal adjustments are initially made and posted each January and July.

In this case, the  IL WC statutory maximum PPD rate is now listed on the website as $790.64 (up from $775.18!!). It has now been quietly reduced by $4 from the prior published max rate).

When it was published, this PPD Max rate changed retroactively from July 1, 2017 to present. If you have a pending claim with a date of loss after July 2017 and the claim has a max PPD rate, you need to take a look and see if the new maximum PPD rate applies. Reserves and future settlements/awards need to be adjusted accordingly.

We will update the KCB&A IL WC Rate Sheets when the new rates are posted in early & mid-July as are all other rates.

Shawn Biery at sbiery@keefe-law.com remains your go-to IL defense source on any issue relating to IL WC rates! Email Shawn for a copy of his IL WC Rate sheet and any question or concern.

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

Synopsis: The Indiana Work Comp Board or IWCB is still working on their Section 15 changes, but also issued new important Nurse Case Manager Guidelines. Thoughts and analysis by our Indiana Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: Last week, I mentioned that a checklist of changes for Section 15s was released. However, also a few days ago, the IWCB abruptly issued notice that they are still working on the changes and to disregard the prior checklist that was distributed. So, we are not sure of the exact changes right now. But, I’ll keep you posted when they come out with those final approved changes.

The IWCB also issued new Nurse Case Manager (NCM) Guidelines last week, so let’s talk about those. It’s a good time to review these with your NCMs, and to remind NCMs and your staff that whatever NCMs put in writing or in an email could and likely will end up in the hands of the employee, employee’s counsel and/or before the IWCB. Please be very careful in what you/NCMs text, email,  copy, forward or post.

Here are some highlights:

-. The NCM is a liaison among the medical provider, the employer and the injured worker who plays an integral role in the coordination of medical treatment and the stay-at-work/return-to-work process.

 -. The NCM may provide information that speeds up the process of returning the injured worker to work as well as their recovery from the workplace injury.

-. The NCM may know specifics about the worker’s treatment plan that would be useful to the employer in finding suitable work within the employee’s medical restrictions. The NCM can also explain the treatment plan to the worker if there are questions about the medical terminology used.

 -. The NCM can ensure the claim’s adjuster is aware of the injured worker’s medical needs, so they can assist in expediting access to prescriptions, DME, medical tests, therapies, etc., as ordered by the treating physician.

 -. The NCM’s role in Indiana worker’s compensation claims includes providing information and communication among the parties and medical providers, scheduling appointments, helping to facilitate care recommended by the treating physician and reporting back to the employer and/or carrier. Any written notes or report prepared by a NCM and provided to the employer, adjuster or medical provider should also be made available to the injured worker upon request or shall be provided upon Board order. This does not include billing reports.

-. The NCM’s communication with the injured worker should be limited to details of the workplace, the relevant injury, medical treatment and pertinent history. 

-. It is not NCM’s role to determine compensability, make decisions regarding the administration of benefits, deliver or direct treatment, or provide medical opinions to either the injured worker or the medical provider regarding the worker’s appropriate course of medical care. However, this is not to say the NCM is precluded from making inquiries as to the treatment/medication options available to the worker from the medical provider.

-. The NCM must inform the employee that they may require that the NCM not be present during a medical examination. If the NCM meets with the physician before or at the conclusion of a medical appointment, the injured worker must be invited to participate as well.

-. All NCMs working in the field of worker’s compensation in Indiana must hold a professional degree as well as credentials through an approved certification organization, or be actively working toward credentials. Examples are a Certified Case Manager (CCM) certification through the Case Management Certification Commission (CMCC). URAC recognizes 9 different case management certifications.  The Board will also accept these.

-. Any NCM who is not yet certified must work under the supervision of one who is. All NCMs must follow the Standards of Practice for Case Managers by the Case Management Society of America (CMSA) as well as the CMCC’s Code of Conduct.

-. It must always be remembered that Indiana law places the responsibility for directing the medical care of a person injured in the course and scope of their employment solely on the authorized treating physician and the Board. 

If any questions on these and any other important Indiana or Illinois work comp or other legal issues that could affect your claims, please email me, kboyle@keefe-law.com.  

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4-16-2018; Not Just One--Two Federal Courts Rule Long-Term LOA Is Not Required Under ADA; Kevin Boyle JD on UR in Indiana WC and more

Synopsis: Not Just One But Two Federal Courts Rule A Long-Term LOA Is Not Required Under ADA. I consider this required reading for all HR, WC and Employment Law folks.

Editor’s comment: I was surprised to see the Eleventh Circuit is the next Federal Appellate Court to find a long-term leave of absence is not a reasonable accommodation under the ADA. This Court is the highest federal court before a legal issue goes to the U.S. Supreme Court. A short while ago, our Seventh Circuit ruled multi-month leaves of absence, even those defined in term and requested in advance, are not required by the Americans with Disabilities Act or ADA.

I do feel this legal concept may also lead to more terminations in work comp settings where the leave, even with TTD ongoing, drags on for months or years—if you need help in handling such situations on the WC side, send a reply.

Either way, the Eleventh Circuit Court of Appeals followed the concept outlined in the Seventh Circuit ruling and issued a similar opinion, allowing for termination of the worker. These two decisions portend a growing movement indicating to me the federal courts are attempting to curb the abuse of long-term leaves of absence under the ADA which has been baffling and challenging to U.S. employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities, Plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He did not have corrective surgery during this time, so under the employer’s medical leave policy, he was granted another three-month medical leave. At the end of this period, a total of six months of leave, the employee was still not medically cleared to return to work. He told the employer he had another doctor’s appointment in a month and would likely be released to work in six weeks, but it was unclear whether he would have any continuing or permanent work restrictions.

Once they learned of his uncertain state, the employer terminated Plaintiff. Claimant sued, alleging failure by the employer to provide additional leave as a requisite ADA “reasonable accommodation.”

The Federal District Court dismissed the claim. On appeal, the Eleventh Circuit Court of Appeals affirmed dismissal of Plaintiff’s claim on summary judgment. Plaintiff acknowledged ADA case precedent indicates U.S. employers are not required to provide indefinite leave. However, Claimant argued prior decisions involved situations where employees suffered from longstanding medical conditions that could continue indefinitely. In this case, Plaintiff contended an unspecified leave under ADA was reasonable because there was a projected end date and once concluded, his medical condition might be resolved without the need for additional leave.

The Eleventh Circuit rejected this argument finding even though Plaintiff would might recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted the employer did not violate the ADA because it already provided six months of leave and Plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual under ADA.  Thus, the Federal Appellate Court found regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

From this ruling, it is clear in my mind our local Seventh Circuit is not the only Federal Appellate Court seeking to invalidate the EEOC’s expected and well-settled position long-term leaves are required as “reasonable accommodations” under the ADA.  If other federal circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods. As my law partner, Brad Smith always says—“document, document, document.”

If an employee cannot medically substantiate your worker may return to work near the expiration of FMLA leave, you should have greater legal flexibility in determining whether or not to accommodate the request. While you should be aware of this apparently growing trend and choose to adjust your leave/accommodation approaches accordingly, you still have to approach long-term and indefinite leave requests carefully as there are conflicting decisions from other circuits and the EEOC’s position may remain unclear unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits and affirms these new rulings.

I appreciate your thoughts and comments. I am happy to help with FMLA or ADA issues, just send a reply. If you have thoughts on this topic, please post them on our award-winning blog.

Synopsis: Indiana’s Utilization Review Procedures Differ from Illinois—Don’t Be Confused. Comment by Kevin Boyle, J.D. of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Beware when using Utilization Reviews for Indiana Worker’s Compensation Claims.

Prohibitions on the use of “Utilization Review” (“URs”) are not necessarily mentioned in the Indiana WC statutes, and the judges may use URs if needed in their evidentiary analysis. In general, however, URs are not credible medical opinions, but rather insurance company efforts to investigate proposed treatment. Also, just using a UR can spark bad faith claims, too, as an attempt to thwart the treating physician’s recommendations to save money and not provide authorized medical care.

Adding to the analysis is the fact that Indiana UR rules, laws, and regulations are also generally covered in the separate statutory insurance laws and a specific statute for “Drug Utilization Review.” Also, as mentioned in the last few weeks, brand new 2018 legislation also will affect the UR process and drug prescriptions that we are still waiting to see how they will play out.

It can be complicated, so try to stick to the basics. The first basic Indiana rule is that Employer/insurer controls the medical care selection. There are some exceptions, for example emergencies, but let’s just stick with the standard situation. The second rule is that although Employer selects the medical provider, Employer can’t designate the medical treatment. The selected doctor tells us what needs to be done. 

Employers can ask for a second opinion, but Employer can’t tell the doctor to change the treatment. If you think the proposed treatment is not medically necessary, you need a medical opinion to dispute it, and don’t just UR it and rely on the UR. The second medical opinion should be quickly obtained, and it should be by a doctor who actually sees patients and has some experience in Indiana work comp cases. 

Remember also that here are “IWCB-ordered IMEs” that can be used more or less for second opinions. Technically speaking, some people call their “second opinions” “independent medical evaluations” or “IMEs.”  It can get confusing in Indiana, when Employer gets a second opinion, but calls it an IME. It gets more confusing later then if/when the IWCB orders an IME….  Who’s the IME now? So, I usually try to call second opinions in Indiana just that: “second opinions;” and save the “IME” title only for those instances with actual IWCB-ordered IMEs.

In summary, an internal UR/peer review isn’t usually considered to be a credible medical opinion by a qualified provider, and trying it can be problematic. As a result, URs aren’t worth much for evidence in Indiana, so please do more than merely use a UR to deny/dispute the proposed medical treatment.  For more info, email me at kboyle@keefe-law.com

Synopsis: Have you heard the news? There are brand new Indiana Section 15 Full and Final Settlement requirements. Email me for immediate info, kboyle@keefe-law.com, and we’ll have an update in next week’s newsletter, too.  

4-10-2018; Can You/Should You Stay in Touch with an Injured Worker? What If They Have Counsel?; Understanding UR or Utilization Review in Workers’ Comp and more

Synopsis: Can You/Should You Stay in Touch with an Injured Worker? What If They Have Counsel?

Editor’s comment: We were asked this question by a valued reader and wanted to expand our thoughts and recommendations.

Please note when you have any workers’ comp claim, a natural tendency is to avoid your employee—we feel all employers should actually do the opposite.

Never, ever trust the workers’ compensation system to work in your best interests in a work comp claim.

Other than for accrued vacation time, we feel you need to have a strong HR policy to tell all workers and their supervisors to stay in close contact on at least a weekly basis. Other than vacations, we feel this applies to any and all PTO, WC or other lost time.

Don’t let anyone “disappear” from sight. Someone out on work comp or sick leave may want to get away from you and do their best to vanish while still getting paid and accruing other benefits. Whenever we see a worker off work for months or years, it almost always seems like they have vanished from sight of the employer—don’t fall into that trap.

We are asked all the time—what if the worker has counsel? Isn’t there an “ethical” restriction on staying in touch and talking to such a worker? Well, there is an ethical restriction on me and anyone who is a licensed lawyer, when the worker has their own counsel. Before I can talk to a represented worker, I have to have prior approval from their attorney and/or have the attorney on the call/conversation.

That doesn’t apply to most managers or co-workers who aren’t lawyers. You can and should tell your workers you are going to call them or they are going to accept the call or call you back in a timely fashion. If you don’t hear from them at all, you then need to decide what is best for you and your company. In our view, you can and should consider cutting off TTD and other benefits to insure you are receiving regular communication.

What Can and Should You Discuss With an Injured Worker Who is Out on Benefits?

When you talk with the injured employee, never, ever encourage them to terminate their counsel or drop their claim. We are certain if you make this claims mistake you may be fired or at least receive a challenging call from Claimant’s counsel. We also feel you should stay away from any discussions of settlement.

When you or your team talk to a represented claimant, we feel you can and should check to insure

*        Reasonable, necessary and related medical bills are being paid

*        The worker is receiving TTD/TPD or disability checks

*        The worker is happy with medical care

*        The worker is progressing along expected medical recovery path

*        Where appropriate, let them know their job is waiting

If you need help with drafting/implementing a personnel policy to maintain regular contact with all workers out on work comp and other leave, send a reply.

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

Synopsis: Understanding UR or Utilization Review in Workers’ Comp.

Editor’s comment: Utilization review (UR) can and should regularly be engaged by employers, insurance carriers and TPA’s to dispute reasonableness and necessity of medical treatment and lost time. (Sec. 8.7 of the IL WC Act). This concept was previously unknown to the Illinois workers compensation system and continues to be developed in the years to come. Claims adjusters should assume Illinois WC attorneys on both sides are learning this process from square one. We hope claims adjusters who know UR from other states can quickly adapt their UR protocols to Illinois.

One of the best aspects of UR in this State is a UR denial has presumptive effect—Claimant has to overcome a presumption the final UR determination is accurate. For that reason, we feel it can be more valuable and less expensive than some IME’s in corralling medical care.

The 2005 amendments to the Illinois Workers’ Compensation Act codified a political trade-off between business and labor. Business, concerned over rapidly rising medical costs, which comprised approximately 50 percent of total workers’ compensation spend, agreed to a 7.5 percent increase in the schedule of benefits (excluding person as a whole claims), increased minimums, and increased death benefits in exchange for a medical fee schedule, utilization review, and WC fraud provisions.

Utilization review addresses the reasonableness, necessity, and frequency of treatment.

What Is Utilization Review?

Section 8.7 of the Illinois Workers’ Compensation Act defines utilization review as: [T]he evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care or nationally recognized peer review guidelines as well as nationally recognized evidence based upon standards as provided in the IL WC Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment.

820 ILCS 305/8.7(a) (2005)

Section 8.7(b) requires the utilization review provider must register every two years with the Department of Financial and Professional Regulation.

Section 8.7(e): A utilization review program shall have written procedures to ensure that patient-specific information obtained during the process of utilization

Utilization review programs monitor quality and efficiency of health care delivery by achieving common understanding of excellence among employers/insurance carriers/TPAs, medical providers, and patients through the establishment of standards, education and communication and accreditation. You can find out more about utilization review at: http://www.urac.org/.

In addition to optimizing medical treatment, we assume UR is used to demonstrate a claimant should be back at modified or full work and is over-treating. We confirm for the insurance carriers/TPA’s that your defense counsels and Petitioners’ counsels are “flying by the seat of their pants” during the implementation of UR and how it should work.

Your defense counsel will need your expert help in presenting disputes relating to denial of treatment or TTD due based upon UR protocols before the Arbitrators and IWCC.

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