12-24-2019; Great Godfrey!! There Has to Be a Limit--One Shooting Results in 450+ PTSD Claims!!; EOB's For IL WC Are Coming and more

Synopsis: Great Godfrey!! There Has to Be a Limit--One Shooting Results in More Than 450 PTSD Claims!!

 

Editor’s comment: Six city workers were physically injured but more than 450 city workers have filed workers' compensation claims for PTSD following a mass shooting at Virginia Beach city offices in May 2019 that left 12 dead.

This shocking number of new and difficult-to-manage PTSD claims demonstrates to me how challenging PTSD claims may be for anyone to control. Please also note my view that this phenomenon is going to spike and spiral the cost of work comp coverage for post-traumatic stress claims.

In my view, one concern with PTSD claims comes as a consequence of how U.S. federal, state and local government employees work… they work to some extent as a “unit.” Across the country, legislatures are seeking “presumptive” coverage of PTSD for what are called “first responders.” As I have reported in the past, in an emergency someone has to handle/manage injured folks and also deal with or properly remove dead bodies. What some gov’t workers who can be called “first responders” seemingly want is to do the tough jobs they were hired to do, but then file PTSD claims and get paid by taxpayers for the rest of their lives. As fast as things get easier for “first responders” to get WC benefits, liberals across the country want to expand “first responders” to “any-responders.”

The current Virginia Beach mayor joins with all workers to claim the trauma extends beyond those who witnessed the incident firsthand. Mayor Dyer is quoted to say “A great many more were traumatized, including city employees, family members, chaplains, first responders and people who deliver emergency medical services by ambulance, by helicopter.”

What is happening is the City of Virginia Beach will quickly blow through their primary insurance layer and their skyrocketing number of new WC claims will move to the excess carrier. Sleepy Virginia Beach may now have the highest WC costs for any city in Virginia history! Trust me, that is going to mean dramatically increased excess insurance costs, particularly for municipalities around the country.

The History of PTSD

Called PTSD or “post-traumatic stress disorder” since the Viet Nam War, this condition had a long and interesting history. This stress syndrome has been called many things in the 150 years since it was first recognized as a psychiatric condition but every definition had several characteristics in common, including re-experiencing events, numbing feelings and physiological arousal. The process of Darwinian "natural selection" supported the evolution of people with highly developed stress responses; those pre-historic people with the most effective "fight or flight" reflexes became our ancestors. Curiously, during the 19th Century, what is known today as PTSD was called "Railway Spine" and was associated with what we would today call "hysterical" physical symptoms - i.e. "anxiety" expressed as bodily complaints - seen in people who had been involved in railway accidents but who suffered no bodily injuries.

My Focus for the WC Defense Industry Across the U.S.

Please remember my background and training is defense but there is no getting around PTSD in many situations—it is how to deal with the problem, not whether we can and should deal with it. Even the strongest defense view still needs to leave room for someone (or two) who might be shocked by a truly striking event.

 

That said, I assure you many municipal/government workers (in particular) are poised to try to take advantage of the PTSD concept to get paid and full benefits not to work. If we are going to be looking at many hundreds of workers for each unfortunate occurrence, we may have a PTSD “epidemic.” Please note a lifetime PTSD claim for most IL government workers could cost literally tens of millions of dollars. There is a lot at stake in reining in this phenomenon.

 

As you read this, I am betting Illinois government union officials will have secret/quiet/online “instructional guides” on how to maximize PTSD claims.

 

Again, my PTSD psych concerns are to

 

  • Ensure the diagnosis for PTSD is scientifically founded—serious and shocking we understand but we can’t have literally hundreds of such claims for every rapid and transient government occurrence.

  • Make treatment for PTSD have a beginning, middle and end to get the worker to MMI and then

  • Evaluate “permanency” or impairment from the event.

 

Great Experts for PTSD Claims in Illinois

 

It is important to locate IME experts/consultants who understand concerns about care and evaluation of PTSD claimants in the workers’ comp arena. Here is my vote for two:

 

Dr. Mark Mosk – Based in Highland Park, IL

 

After more than 30 years as a practicing forensic and clinical psychologist serving the worker’s compensation community, he has evaluated and treated hundreds of patients referred for suspected PTSD. Dr. Mosk confirms this is a complex type of stress related condition that presents with many different variations such that no two patients’ presenting symptoms, functional impacts, causes, and courses of treatment are alike. This is because two individuals never perceive an allegedly traumatic event in the same way, nor do they harbor the same preexisting coping skills to modulate their cognitive, emotional and physiological reactions to the purported trauma. Thus, the nature and possible causes of the alleged disorder, as well any necessary intervention tactics, are unique to each claim.

 

In his experience, a key to mitigating both the adverse clinical impact on a patient suffering from PTSD and to minimize the risk associated with managing a PTSD claim is to ensure the claimant undergoes a comprehensive evaluation as soon as possible following the actual traumatic exposure. Delay of this process greatly increases the likelihood the clinical condition will intensify and require more robust intervention. Similarly, Dr. Mosk found two proactive strategies for averting a mass traumatic event from evolving into multiple cases of PTSD to be particularly helpful. The first is to provide employees with advance preparation training to self-manage should such an event occur, and the second is to provide  onsite social support and cognitive behavior therapy based counseling immediately following exposure to a workplace trauma, which can help workers develop resilience to deal with the cognitive, psychological and physical symptoms often associated with such exposure. Dr. Mosk’s website with contact information is www.drmosk.com

 

Dr. Nausheen Din – Based in Barrington and Chicago

 

Dr. Nausheen Din, MD is a physician specializing in psychiatry. She is committed to assessing and treating patients with complex psychiatric and behavioral disorders including PTSD, depression, suicidality, bipolar disorder, OCD, generalized anxiety, social phobia, substance abuse, eating disorders, ADHD/ADD and autism. Treatment modalities offered include consultation, risk assessment, psychotropic medication management, individual and group psychotherapy, psychological testing and rTMS therapy. Dr. Din has been in private practice for close to fifteen years and maintains a multisystemic outlook in treating patients. She emphasizes the importance of a bio-psychosocial formulation, so that the treatment plan attends to all facets including psychiatric pathology, educational, athletic, interpersonal, social, familial and concurrent medical illness. If you want contact information, send me a reply, please.

 

If you have any other recommended PTSD experts in central and southern Illinois, send the contact information. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: EOB’s for IL WC Medical Care Are Coming At the IL WC Industry.

Editor’s comment: IL WC Proposed Rules Detail New Explanation of Denial(s) on Medical Bills.

The Illinois Workers' Compensation Commission is reminding all participants it has proposed a new rule that specifies how an IL WC insurer must send a complete explanation when work comp medical bills are denied.

The new proposed rule, required by the new law in Senate Bill 904, adopted in 2018, was published in the Illinois Register in September, and is available at this link: EOB Proposed Rule.

The rules, when enacted, will require all IL WC insurers or self-injured employers to send a form EOB or explanation of benefits that contains

  • Claim adjustment reason codes;

  • Remittance advice remark codes;

  • Reject codes from the National Council for Prescription Drug Programs; and

  • “All information necessary to match the explanation of benefits with the associated medical bill.”

Employers, payers and health care providers may exchange data for medical bills and explanation of benefits in a nonprescribed format by mutual agreement, the new proposed Rule says.

This is a seminal change in IL WC claims handling. I assure you it is happening and you won’t be able to avoid it. If you need help with implementation, send me a reply. I will continue to monitor and report progress.

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

 

The Basics of Workers' Compensation - What's Changed for Illinois

 

January 21, 2020 | 10:30 am - 12:00 pm | Webinar

Join Shawn Biery from Keefe, Campbell, Biery & Associates for a webinar which will cover the basics of workers’ compensation claims in IL. You will learn the ins and outs of managing workplace injury claims, litigated or not. From investigation to setting claim targets, to closing claims efficiently, this 90 minute webinar will guide your business toward favorable outcomes from every workers’ compensation claim. We will also highlight some of the recent trends and current potential changes to the system so you won’t want to miss out on your chance to get ahead of the pack.

 

Register Here

 

12-18-2019 Notice of IL WC Arbitrator Assignments Effective January 1, 2020; IL WC System Moving to CompFile, the new e-filing system for Illinois WC cases online and more

Synopsis: Notice of New IL WC Arbitrator Assignments Effective January 1, 2020.

Editor’s comment: As I advised previously, the “A” in TBA starts in 13 days! The gaps and confusion for hearings, motions and settlement contract approvals should be ending very shortly.

The following Arbitrators will be assigned and/or reassigned to the following Chicago Calls, effective January 1, 2020:

Arbitrator Joseph Amarilio will take the Chicago Call and claims previously designated as “TBA.”

Arbitrator Elaine Llerena will take the Call and pending claims previously designated as “Cellini.”

Arbitrator Christopher Harris will take the Call and pending claims previously designated as “TBA4.”

Arbitrator William McLaughlin will take the Call and all claims previously designated as “Robert Harris.”

All other Chicago WC Arbitration Assignments will remain as reported previously.

The following Arbitrators will be assigned and/or reassigned to the following “Downstate” or “Out-State” Zones, effective January 1, 2020:

Zone 1: Arbitrator Linda Cantrell will replace Arbitrator Edward Lee who is staying an Arbitrator but moving to a different Zone. Arbitrators Gallagher and Nowak will continue to serve and manage their existing claims in Zone 1.

Zone 2: Arbitrator Dennis O’Brien will take the call previously designated as “TBA5.” Arbitrator Edward Lee will take the call that was designated as Cantrell. Arbitrator Maureen Pulia will remain in Zone 2.

Zone 3: Arbitrator Adam Hinrichs will take the call previously designated as “Paul Seal.” Arbitrators Rowe-Sullivan and Granada will continue to serve in Zone 3.

Zone 4: Arbitrator Cellini will take the call previously designated as “Dollison.” Arbitrator Doherty will take the call previously designated as “TBA2” and Arbitrator Hegarty will take the call previously designated as “Erbacci.” Arbitrator Erbacci is moving to a different zone.

Zone 5: Arbitrator Erbacci will take the call previously designated as “Hegarty.” Arbitrator Seal will take the call previously designated as “Doherty” and Arbitrator Glaub will remain in Zone 5.

Zone 6: Arbitrator Robert Harris will take the call previously designated as “Ory.” Arbitrators Soto and Friedman will remain in Zone 6.

To our understanding, Arbitrators Greg Dollison and Christine Ory are retiring or have retired already. They are both veteran and knowledgeable professionals and will be missed. The defense team at KCB&A salutes their hard work for the IWCC over the years.

Synopsis: The IL WC Commission has announced CompFile, the future e-filing system for managing Illinois workers' compensation cases online. 

 

Editor’s comment: We understand the IWCC contracted with Microsoft© to implement the CompFile system and kicked off the project in the Summer 2019.

 

CompFile will include the following features:

 

  • Online accounts for attorneys on both sides

  • Electronic filing of applications and other litigation documents

  • Electronic submission of settlements—everyone hopes this process will move much faster, moving forward

  • Electronic delivery of notices and decisions

  • Secure, online access to case information and documents

 

The CompFile Project Team will roll out the new system in 3 phases.

 

The first phase is scheduled for early 2020 will involve attorney and firm registration. The entire project is to be fully functional and completed by late 2020.

   

Some key benefits of CompFile include reduced usage of paper, real-time access to court filings and documents, immediate verification of successful filing, and electronic service of documents on counsel.

 

Training

 

Stay tuned for details about training.

 

There will be numerous opportunities for in-person and virtual training on CompFile throughout the project. 

 

There will also be a dedicated CompFile support team for users.

 

The IWCC will regularly update their website to share additional information on this project. 

 

You can also send any questions regarding the implementation to their dedicated CompFile e-mail address, wcc.compfile@illinois.gov.

12-9-2019; Q&A on New Recreational Marijuana Laws in IL Workplaces; Gene Keefe’s Year-End IL WC Contest to Locate Well-Paid Medium Duty Jobs for IL Injured Workers and more

Synopsis: Q & A From Defense Attorney John Campbell and Lobbyist Jay Shattuck About New IL Recreational Marijuana Laws in Your Workplaces.

 

Editor’s comment: Our name partner John Campbell had a good question from a client worth sharing; he asked lobbying expert Jay Shattuck of the IL State Chamber if he could provide some insight. Please note Jay is not a lawyer and doesn’t profess to be; that said, in my view, he is one of our State’s top experts on understanding legislation and its impact on your business.

 

John Campbell noted the IL recreational marijuana statute provides that employers can maintain a “zero tolerance” policy but then outlines parameters on grounds for termination such as a positive test and other evidence of impairment.

 

John was asked if a zero tolerance policy means that even trace amounts of marijuana found on a drug test (well below the vehicle code limit of 5 ng for impairment) would still permit termination under a “zero tolerance” policy by an employer?

 

Jay Shattuck felt the answer is yes.

 

Jay indicated the issue that will need to be defended [by IL employers] is whether the policy is “reasonable” and “non-discriminatory”. For example, having a zero tolerance policy that allows employer disciplinary action including termination for safety sensitive jobs (not just necessarily physical tasks but employees with tasks that could adversely impact themselves, other employees, clients/customers, the public or the organization) could have a policy prohibiting  any level of THC. However, it could be considered discriminatory if the zero tolerance was THC only and did not include other substances or if the policy was applied to only one set of safety sensitive jobs and not others.

 

Jay felt legislative intent clearly was provided during debate of HB 1438 that IL employers with drug testing policies prior to the law would be able to continue those policies as long as the policy was reasonable and non-discriminatory.

 

John Campbell then asked “in other words, there is no evidence of impairment, but marijuana screen was positive at low levels upon testing. Can an employer still terminate?

 

Jay Shattuck again felt the answer is yes. He pointed out Subsection (d) that refers to impairment says “an employer MAY consider.” It does not require an employer to show impairment. Jay would argue that the construction of the whole section is that each subsection stands on its own. There is no connection of the subsections with an “and”.

 

With the most recent changes, Jay and the State Chamber believed it was also important to separate the old e-1 into two parts which was accomplished. The good faith belief provision now stands on its own and the items in subsection e are separated by an “or” not an “and”.

 

John Campbell, Brad Smith and Matt Ignoffo of KCB&A are veteran lawyers who are developing a strong expertise on defending employers who will be dealing with marijuana use in and around your workplaces. Feel free to contact any of them to consult and advise you on all aspects of the new challenges you are certain to face.

 

We also strongly recommend our clients and potential clients join the IL State Chamber of Commerce that is the leading proponent/protector of IL business and local governments. We salute the hard work of Jay Shattuck and other Chamber folks that helped form this new legislation in a state legislature that is somewhat one-sided.

 

These opinions and statements are accorded to the persons outlined above. We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: Gene Keefe’s Year-End IL WC Contest to Locate Well-Paid Medium Duty Jobs for IL Injured Workers.

Editor’s comment: I feel there is flawed math in many major IL WC claims. Peter or Paula Petitioner might be a large/strong person. Petitioner has a job in construction, trucking or any industry that pays well for healthy peeps but relies on the worker being able to lift 50-75lbs. regularly. The worker suffers a strain/sprain with maybe one surgery. After surgery, the unwitting and otherwise unknowing doctor who is treating Claimant prescribes an FCE or functional capacity evaluation—the claim moves into what I call “the IL WC FCE dance.”

 

The IL WC FCE Dance

 

Please note my continuing and well-founded disdain for FCE’s. The main issue I have is everyone who goes through surgery and then gets into post-surgical physical therapy is guided by RPTs or registered physical therapists. The RPT’s carefully and diligently record progress and complaints and do their very best to get their patients back to the best possible function. At the end of the course of PT, how can it make any sense to ignore the PT records/care and progress to then do a two-hour “test” where the patient’s life is measured by the hilariously unscientific and subjective methods of an FCE. Please also note a patient can’t “fail” physical therapy—if they don’t cooperate, the RPT will discharge them. In contrast, I have probably seen over a hundred “failed” FCE’s where the person conducting the test reaches the conclusion the patient isn’t cooperating and the testing is invalid. The problem with the finding of invalidity is our IL WC Arbitrators won’t toss out the invalid test, they will still “rely” on it to some extent in valuing wage loss and/or permanency.

 

Going back to Peter or Paula Petitioner above, when the large/strong claimant goes to the FCE, they are “coached” to fail. There are many easy ways to fail an FCE. I saw one claimant who had one operation to one knee. Pro football players could have the surgery this claimant had and return to work, pro football, in a week. This guy underwent surgery and had no real issues through physical therapy. At the end of PT, he was obviously coached in the IL WC FCE dance—during the supposedly scientific testing, whenever he lifted anything he would routinely tell the evaluator it caused subjective and unverifiable pain. He complained so often he convinced the evaluator who found his complaints somehow “valid,” as if he was able to look into this guy’s body to confirm he was telling the truth and not making it up.

 

After the somehow “valid” FCE test, the evaluator assigned medium work restrictions for the rest of this person’s entire life. As I indicate above, the FCE test can be two hours long but whatever claimant does for those two hours is “life-changing!!” What a hoot.

 

After being assigned work restrictions, claimant has now reached his goal of an IL WC ‘Jackpot.’ For construction workers and truck drivers the IL WC FCE Dance now supposedly documents a lifetime limited ability of being only able to work at minimum wage where their prior job required heavy lifting. In the IL construction industry, workers make $40-60 per hour so they win the IL WC FCE dance to be entitled to gigantic wage loss until they reach age 67. For most workers in their 30’s and 40’s, the discounted present value of such a claim is between $300-600K!

 

Okay, Gene, so what is the contest?

 

Well, I am not willing to accept that every large/strong worker with one surgery to one body part can only make minimum wage. I want your help to locate well-paid jobs that someone with a high school education and some training can do in relatively short order with sedentary, light or medium work restrictions. I am offering $50 of MY money to buy an Amazon Gift Card for each winner and will publish your recommendations if you give me authority to do so.

 

Examples of Medium/Light Jobs for Large/Strong Workers? I have a bunch.

 

First, please consider USPS—yep, the good ole Postal Service. If you go to the USPS jobs website, you will note starting pay for postal workers and managers in most places is $21 per hour! Median pay is $36 per hour with full federal healthcare and pension benefits. The USPS website indicates lots of their workers make over $100K a year!

 

Please note mail carriers with USPS have to lift up to 70lbs when they grab the mail sack. You don’t want medium/light duty claimants going for mail carrier positions, either in a city or rural. But all other USPS jobs, like window clerks and mail sorters are light or medium work and only have some training requirements. Selling stamps isn’t hard work.

 

Second, “no touch” city trucking jobs are another possible option for Peter or Paula Petitioner. Most Claimants have to drive to their doctors and FCE’s and all medical care. If they can drive their car, they can and should be able to drive a truck. The one downside to this path for getting a big person with restrictions back to medium work is they have to take a truck driving course and get a CDL or commercial driver’s license. That takes some time and has its own cost but it is better than paying a mildly injured worker a zillion bucks to get rid of them.

 

Third, I have posted this in the past and I need your thoughts on 911 Emergency Call Center jobs. Basically, this is manning or “womanning” phones. The worker needs about 90 days of training and has to learn “cop talk” to talk to reporting officers and others on the phone. This is a fully sedentary job. There are always openings because the position has to fill a chair on a 24/7 basis. Folks working at these positions are paid similar to police and firefighters—they make around $50K a year to start and quickly move up in the range of $100K with full pension and healthcare benefits.

 

What Do You Think?

 

Do you know of such positions? Again, they have to be well-paid jobs. They also have to be positions with sedentary, light or medium work. If the position will allow the worker to alternate sitting and standing, all the better. Training can’t be long because employers will have to pay TTD during training which could make the cost prohibitive if the training was a year or more.

 

Send in your best thoughts with or without permission to use your name. I appreciate your thoughts and comments. Please post them on our award-winning blog.