5-7-2018; Gene Keefe on Narcotics/Opioids in U.S. Work Comp Claims; Indiana WC Board Stays on the Cutting Edge of Reporting Technology and more

Synopsis: Gene Keefe on Narcotics/Opioids in U.S. Workers’ Compensation Claims.

Editor’s comment: I/We can’t keep ignoring this one, as it clearly is an 800lb. pink gorilla that is threatening our WC system and lives.

From my perspective, the most addicting substances on this planet are tobacco/nicotine and narcotic/opioid medications.

Tobacco/Nicotine

I am sad to report I have had literally dozens of wonderful clients who passed from an addiction to tobacco/nicotine. These clients left children and grandchildren and families in the lurch, some of these folks smoking during chemotherapy. The scientific and common-sense approach to this substance is simple. If you are using it, please, please save your life and stop. If you are a client or close friend of KCB&A and truly want help to stop, please send a reply.

Narcotic/Opioid Medications

We are in the midst of a national narcotic/opioid overdose epidemic. I personally dislike the term ‘opioid’ because it sounds technical and medical—everyone knows ‘narcotics’ are bad for you and almost uncontrollably addictive.

Drug overdose is the leading cause of accidental death in the US, with 52,404 lethal drug overdoses in 2015. Narcotic/opioid addiction is driving this epidemic, with 20,101 overdose deaths related to prescription pain relievers, and 12,990 overdose deaths related to heroin in 2015. 5 From 1999 to 2008, overdose death rates, sales and substance use disorder treatment admissions related to prescription pain relievers increased in parallel. The overdose death rate in 2008 was nearly four times the 1999 rate; sales of prescription pain relievers in 2010 were four times those in 1999; and the substance use disorder treatment admission rate in 2009 was six times the 1999 rate.

In 2012, 259 million prescriptions were written for narcotic/opioids, which was more than enough to give every American adult their own bottle of pills. Four in five new heroin users started out misusing prescription painkillers. 94% of respondents in a 2014 survey of people in treatment for opioid addiction said they chose to use prescription narcotics/opioids because they are easier to get and use.

“Chronic pain” affects as many as 100 million Americans, more than the number affected by heart disease, diabetes and cancer combined. The prevalence of chronic pain is growing and is likely to continue to do so. As the rate of reported chronic pain increases, it has been accompanied by a rise in the rate of adults reporting the use of prescription drugs for pain, including narcotics/opioids such as OxyContin, Percocet and Oxycodone products.

Workers’ compensation

In workers’ comp cases, spending on narcotics/opioids far outpaces utilization and spending in the group health market. Narcotics/opioids comprise almost 34% of the total drug spend for workers’ comp payers as opposed to about 3% in the group health market. Of the total medical expense for workers’ compensation claims, the cost of prescription medications accounts for 19%, according to the National Council on Compensation Insurance.

The impact on the cost of WC claims is significant. When a workers compensation claim involved any narcotic/opioid, the claim cost averaged nearly $20,000 more than claims without opioids. The use of narcotics/opioids also affected time lost from work. Odds of chronic work loss were six times greater when narcotics/opioids were used.

Please also remember settling a claim involving a narcotic/opioid addict causes the MSA or Medicare Set-Aside Trust value to be gigantic. All parties have to assume the addiction is going to continue and to pay for a lifetime of narcotics/opioids won’t ever be cheap. The MSA cost can easily be much higher than the PPD or impairment value of a given claim—this always confuses injured workers. For this reason alone, the entire U.S. WC industry has to do whatever it can to stop narcotic/opioid abuse and addiction in workers’ comp claims.

How Does the WC Industry Counterattack the Use of Narcotics/Opioids in WC Claims?

First, I recently saw a study of total shoulder replacement surgeries in North Carolina. The docs running the study compared recoveries/complaints with patients that used narcotics/opioids in contrast to those who used traditional ANSAIDS like Extra-Strength Tylenol© or Advil©. The results showed little difference in recovery and complaints. I am sure there were no lasting drug addicts that came from the test group that used traditional ANSAIDS. I strongly hope more similar studies will be published, as the medical/surgical industry starts to refuse to use/promote narcotics/opioids in all patients.

Second, our firm also had a major national client decide on a 7-day rule for prescription narcotics/opioids. They asked me how to “enforce” such a rule. I confirmed three solid tools that can and should be considered in Illinois WC claims.

1.      UR or utilization review is the fastest and easiest method to block prescription narcotic/opioid use. If an employer/insured can get a UR non-cert for continued prescription narcotic/opioid use, it is presumptively correct.

2.      An IME is also a tool to put into the claims bag to use/comment on such prescriptions—the problem with IME’s is the delay encountered in setting and getting the report.

3.      Finally, what this client did by letting everyone know of their “rule” may also “work” to the extent you let the docs/surgeons and others know you have such a rule and refuse to divert from this challenging path. It is hard for IL Claimant lawyers, no matter how dedicated they may be to get such issues rapidly in front of an Arbitrator and force approval of prescription narcotics/opioids.

We are sure our IL WC Arbitrators and Commissioners are well-educated, professional and know what is at stake when they are dealing with prescription narcotics/opioids. These strong hearing officers are generally reluctant to order an IL employer to pay for months and possibly years of prescription drug use/abuse when it comes to narcotics/opioids. Our Midwest hearing officers want injured workers to get healthy after an injury and stay clean and sober when doing so.

WC Insurers and TPA’s Can’t Hide Their Heads in the Sand on this One—Step Up and Start Fighting Narcotic/Opioid Abuse Every Way You Can

With the help of WC insurers and third-party administrators, employers have to play an important role in promoting appropriate use of narcotics/opioids. This can mean early and appropriate return to work to prevent an otherwise simple claim from turning into an expensive and never-ending legacy claim. Companies should look for WC Insurers/TPAs that offer several critical capabilities. These include:

·        Early intervention and Use of Nurse Case Managers: The first few hours after an employee is injured are critical. This is when initial decisions about treatment are made, including what to prescribe for pain. Look for an insurer/TPA with a clinical resource hot line to access nurse case managers that can help assess injuries and direct employees to urgent care or an appropriate network doctor who are positioned to best handle the treatment of injured workers and have a proven track record of successful outcomes.

·        Ongoing Claims insight: At specific junctures throughout the life of a WC claim, the continued use of narcotics/opioids should be evaluated. I like the “hard line” that provides a cut-off date/time. When narcotics/opioids are prescribed, there should be notations in the claim file and a mechanism in place to monitor the types of drugs and duration of use. Use of pharmacy benefit management with aggressive utilization review is critical.

·        Predictive analytics: Strong partnerships between employers and insurance carriers/TPAs are the result of ongoing and meaningful interaction. An insurance carrier/TPA that uses predictive analytics can extract value from a company's claim experiences. This can help pinpoint problems and spur collaborative approaches to develop plausible solutions.

·        Return-to-work programs: Any time an injured worker loses time from work, there is a risk that the individual will never return, leading to total and permanent disability. When narcotics/opioids are involved, the odds of chronic work loss are significantly higher. Aggressive return-to-work programs, therefore, are critical. Employers should look for ways to provide employees with modified job duty whenever possible to get them back on the job.

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Synopsis: Indiana WC Board Stays on the Cutting Edge of Reporting Technology. For answers to your concerns, contact Kevin Boyle, J.D., KCB&A’s Indiana WC Defense Chair.

Editor’s comment: The Hoosier WC Board just announced their EDI 3.1 ROLLOUT to start on 01/01/2019.

The Indiana Worker's Compensation Board (INWCB) will be implementing electronic reporting of workers’ compensation first reports of injury (FROI) and subsequent reports of injury (SROI).  Electronic reporting will be required for all trading partners: insurers, self-insured employers, and third party claim administrators. Mandatory implementation is planned for January 1, 2019.

Electronic reporting will be via Electronic Data Interchange (EDI) transactions using the Claims 3.1 reporting standards adopted by the International Association of Industrial Accident Boards and Commissions (IAIABC). Additional information on the IAIABC EDI transactions for FROI and SROI can be found online at the IAIABC website, http://www.iaiabc.org.

The INWCB has contracted with ISO's Workers Compensation Solutions division, to manage its FROI and SROI EDI reporting.  ISO will be administering registration of trading partners, testing, data collection and submission of EDI data to the State. 

INWCB will provide an enhanced EDI Website that will be available early June 2018. This website address will be provided at that time and will contain the following.

• Trading Partner Electronic Profiles Registration and Instructions to be completed by all Trading Partners
• Trading Partner Training Schedule
• Trading Partner Testing Documentation/Plan. (Note: For Trading Partners that will utilize a Vendor, the Vendor will perform the testing on your behalf)
• INWCB Claims Release 3.1 Implementation Guide and Requirement Tables
• EDI Vendors that may assist with EDI reporting
• Implementation Information that will provide additional information to support the INWCB EDI Reporting Requirements
• Frequently Asked Questions (FAQ) for EDI
• Helpful Web Links
• What’s New: Announcements, etc.
• Contact us for help at INWCBEDI@iso.com

If you have any questions, please contact the INWCB EDI Support Team at INWCBEDI@iso.com. If you have further questions/concerns, email Kevin Boyle at kboyle@keefe-law.com.

4-30-2018; IL WC Medical Providers Can’t Directly Sue IL Insurers/Insureds for Interest on Delayed-Paid Medical Bills; More Goofy IL WC Legislation--Don't Worry About It and more

Synopsis: IL WC Medical Providers Can’t Directly Sue IL Insurers/Insureds for Statutory Interest on Unpaid or Delayed-Paid Medical Bills.

Editor’s comment: In my opinion, this medical provider and their counsel have been legally aggressive in seeking payment of their billing. I feel certain they saw the legislative provision in the 2011 Amendments to the IL WC Act that provided for 1% per month or 12% per year on unpaid medical bills to be an entry path to getting increases to delayed and unpaid medical billing. If such an avenue was present, we feel all the doctors, hospitals and other medical caregivers in this State would have considered similar collection pathways.

It is the Workers’ Compensation Act; Not the Doctor’s Compensation Act.

The problem I feel many medical providers have is a lack of strong interest from Claimant attorneys to insure the medical caregivers are not only paid the correct amounts for their billing but also paid timely. There is an interesting issue present about the ethical duties of the Claimant attorney to insure the medical providers get everything they are entitled to—I feel such attorneys work to their client’s best interests and aren’t strongly interested in helping doctors and hospitals. The injured worker and their attorneys do their best for the medical caregivers but that doesn’t always insure full and timely payment occurs.

There is another problem when doctors, hospitals and other caregivers run up huge bills, either due to overbilling for services or over-servicing a patient. In such settings, Claimant attorneys don’t feel particularly happy to be turned into a collection attorney with a treater that may not fully cooperate with collections efforts. If the treater has to come to the IWCC to testify, they may lose money because they aren’t treating.

IL Appellate Court Rejects $37,229 in Statutory Interest for Belated Payment of Medical Bills; Ruling Confirms Doctors and Hospitals Can’t Sue Insurer or Insured Directly.

The Illinois Appellate Court overturned an award of $37,229 in interest to two treatment providers for a work comp carrier’s late payment for services.

In Medicos Pain & Surgical Specialists v. Travelers Indemnity Co. of America, No. 1-16-2591, 04/26/2018, published. Claimant Mendoza worked for Blackhawk Steel Corp. After he suffered injuries in 2010, he received treatment from Medicos Pain & Surgical Specialists and the Ambulatory Surgical Care Facility. After waiting several years for payment for the services provided to Mendoza, Medicos and Ambulatory filed suit against the work comp insurance carrier, Traveler’s Insurance.

The Arbitrator determined medical services from both providers had been reasonable and necessary treatment for Mendoza’s injuries. When Claimant Mendoza received an award of permanent partial disability benefits, he remitted it to Medicos and Ambulatory Surgical Facility. The providers and Traveler’s proceeded to a bench trial in the Circuit Court on the providers’ entitlement to statutory interest for the time Defendant Travelers had not paid their bills.

The circuit court judge awarded Medicos and Ambulatory $37,229 in statutory interest, pursuant to Section 8.2(d) of the Workers’ Compensation Act. As I outline above, Section 8.2(d) of the IL WC Act states late payments to a medical service provider “shall incur interest at a rate of 1% per month payable to the provider.”

The Appellate Court confirmed the award of statutory interest was improper following its decision in Marque Medicos Fullerton v. Zurich American Insurance Co. In the earlier ruling, the Court explained a party can assert a right to be compensated for the violation of a statute only if a private right of action was authorized by the legislature. Section 8.2(d) does not expressly authorize a private right of action to collect interest, but the court’s decision said a private right of action could be implied for a plaintiff who is a member of the class for whose benefit the statute was enacted. Earlier ruling confirmed the purpose of Section 8.2(d) was to encourage the prompt payment of benefits to injured workers, not their treatment providers. However, the Court held treatment providers have no implied private right of action under the IL WC Act.

In this claim, the Court confirmed their earlier decision was controlling on these Plaintiff. Since the providers did not argue any grounds for reconsidering the analysis and holding in the earlier ruling, the Court declined to change it in any way.

Justice Robert Gordon who handled many IL WC claims with and against me during his illustrious career wrote a concurrence and agreed the award of interest could not stand, but he said he disagreed with the majority’s legal view. He opined the problem for doctor’s and other medical providers was not the absence of a private right of action, but rather the exclusive jurisdiction of the Workers’ Compensation Commission.

To read the decision, click here.

Synopsis: More Goofy IL Legislation in Workers’ Comp—Don’t Worry About It.

Editor’s comment: Last week, the Illinois House of Reps passed a bill that would again supposedly set up a tiny government insurer for the residual market.

I have repeatedly attacked this silliness and I promise not to stop. Illinois Republican Gov. Bruce Rauner vetoed a similar bill last year and is expected to do so again if HB 4595 makes it to his desk. We bet the IL Senate will wisely fuss around until after the November IL elections to see if the “other billionaire” or JB Pritzker might approve of this kooky idea.

The bill, sponsored by state Rep. Laura Fine, D-Glenview, passed the House 62-43 Thursday, but has not seen any action in the Senate.

The bill would create a public insurer to address the troubled market of last resort, for employers who can't obtain affordable workers' compensation insurance from commercial carriers. The bill would do this in part by requiring the IWCC to lend $10 million from the Workers' Compensation Commission operations fund to create the Illinois Employers Mutual Insurance Co. 

Understanding I am not shy about this one, my view is this concept is complete hogwash. Again, in my view, this is a total legislative PR push generated by the IL Trial Lawyers. Some obvious issues:

1.      The money is supposed to come from the IL WC Commission’s budget. The IL WC Commission has 150 workers or so and a $30M annual budget. How would they “lend” 1/3 of that money for this effort and not have to lay off staff? The use of the IWCC’s money for this odd purpose would impair hearings for seriously injured workers and other important IWCC actions.

2.      The money would create a truly tiny, almost miniscule state insurance carrier. Please note one of the insurance carriers listed in the next sentence is worth more than $33 billion dollars. The tiny State carrier would only have $10M in funds and then supposedly “compete” with multi-billion dollar international WC insurers like Travelers, Zurich, The Hartford and AIG.

3.      The impact of a $10M insurance carrier in relation to the multi-billion dollar giants of that business is not going to be statistically measurable.

IL Democrats have been stupidly claiming this is all about the major insurers “colluding” or getting together to raise WC premiums and not passing along savings to their customers. There are over 300 WC insurers in the IL WC insurance market—they strongly compete with each other to seek to provide the lowest possible premiums and grab all the business they can.

In short, draw your own “contusions.” If this bill becomes law, I would bet the money never moves as they claim and nothing will ever come of it—in short, this is legislative sleight-of-hand. You can worry about it but I bet your time is better used to make sure other more important things in your life are taken care of.

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

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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