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Illinois: The State Of Comp

June 2017

By Francis M. Brady

Writing about developments in Springfield is a bit like forecasting Illinois weather: tricky due to sudden changes. My lawyer's tendency to avoid absolutes becomes even more pronounced when I handicap legislation. Still there are things you ought to know so, with the caveat that nothing is ever completely certain in the State Capitol, here is where Workers' Compensation reform stands "as I write."

HB 2622 enacting a State run Comp Insurance carrier (funded initially by a 10 million loan from the IWCC Operations Fund) was passed by the Senate last Friday and now is on the Governor's desk. He almost assuredly will exercise his veto.

Also last Friday the Senate amended HB 2525 and returned it to the House where it passed on a party line vote yesterday (May 31, 2017). I expect it, too, will be vetoed by the governor.

THE BEST PERSPECTIVES

June 2017

By Beverly N. Masuda

The Firm recently marked 20 years of operation with another in its series of Annual Seminars. Drawing on their experiences as Arbitrator, Psychologist, and defense counsel, speakers illuminated the path to advantageous claims results.

Prominent among the speakers were Arbitrator Maria Bocanegra and Dr. Nancy Landre. As a litigator turned Judge, Arbitrator Bocanegra brought a breadth of perspective to her topic of procedures that, while tending to be overlooked, nevertheless could be employed to streamline and persuade. She called attention to Section 8.2 (a-3) of the Act, which limits the amount that can be charged when a prescription medication is dispensed outside a licensed pharmacy, for example, from a physician's office. She stressed the value of a thoroughgoing investigation into the totality of circumstances surrounding the prescription and delivery of a drug as opposed to simply turning the issue over to a vendor for pricing. She emphasized as well that she often wished evidence would be introduced not just on whether the drug represented reasonable and necessary care, but also, whether it might be replaced with a less costly substitute.

REDEFINING DIAGNOSIS "CODES" ELIMINATES CONDITIONAL PAYMENTS CLAIM

June 2017

Following a claim settlement in which all known medical treatment bills had been paid by the insurer, Medicare submitted a claim for reimbursement of conditional payments in excess of $17,500.00. According to the representative of CMS, the charges were all related to the claim, because the records of the medical providers included the same diagnostic codes as those used in the treatment of the underlying injury.

In our initial assessment, we noted the majority of bills in the CMS claim were submitted by medical care providers that were not involved in the claim prior to the settlement. We recommended further investigation, and the claims handler authorized medical records subpoenas. The records that were obtained demonstrated that the coding had nothing to do with the actual treatment. The body parts and conditions listed in the records, and the actual treatment and services that were rendered by these providers had nothing to do with the claimed injuries.

THOROUGH INVESTIGATION, DETAILED ARGUMENT LED TO EXCLUSION OF DISPUTED DRUGS FROM MSA

June 2017

A claimant sustained serious injuries to his left arm and right leg when he was struck by an automobile in 2008. His diagnoses included an open fracture of the shaft of the ulna, an open fracture of the shaft of the fibula, and a fractured tibia, as well as a non-union of the tibial fracture. Treatment included an open reduction and internal fixation of the ulna, intramedullary nailing and debridement of the tibia, and multiple physical therapy and orthopedic care visits from July 2008 to October 2014, a period of over six years.

At the time the settlement was approved in September 2014, the claimant continued to receive treatment for right leg pain. This included extensive use of narcotics, which alone were valued at more than $40,000.00 over the claimant's future life expectancy. In our triage for an MSA, we recommended obtaining updated medical evidence, which our team analyzed. The new evidence supported our argument to CMS that the petitioner's ulnar injury had completely resolved and needed no further treatment.

Impact of the Insured's Contractual Waiver of Subrogation on its Insurance Carrier's Workers' Compensation Lien

March 2017

By Jeffrey F. Clement

We have recently seen an increase in contractual provisions which seek to limit subrogation rights for losses covered by workers' compensation insurance. Most often, these provisions are contained in construction subcontract agreements between a general contractor and subcontractor. A typical provision might require the subcontractor to waive subrogation claims against the general contractor for losses covered by the subcontractor's workers' compensation insurance. The contract may further require the subcontractor to provide a waiver of subrogation endorsement in favor of the general contractor which waives subrogation rights against the general contractor regarding workers' compensation.

Let's assume an employee of the subcontractor is injured on a construction project giving rise to the payment of workers' compensation benefits. Let's further assume the employee files a third-party civil lawsuit against the general contractor on the project for his or her injuries. Ordinarily, pursuant to Section 5(b) of the Illinois Workers' Compensation Act, the subcontractor's workers' compensation carrier has a statutory lien on plaintiff's recovery against the general contractor in an amount of 75% of its workers' compensation payments, less pro rata share of expenses. If the employee does not file a lawsuit, the Act also gives the subcontractor the right to file a direct subrogation lawsuit against the negligent third-party (here, the general contractor) for the employee's injuries. However, does the aforementioned waiver of subrogation provision have any impact on the ability of its workers' compensation carrier to enforce its statutory lien or file a subrogation lawsuit?

Laid-Off Carpenter Fails to Establish Discharge in Retaliation for Workers' Compensation Claim

March 2017

By W. Scott Trench

In Illinois, employers should tread carefully when considering whether to terminate an employee who has exercised his or her rights under the Illinois Workers' Compensation Act. Illinois recognizes a cause of action for retaliatory discharge in which a successful plaintiff may recover not only actual damages but punitive damages as well. An employer with a legitimate business reason to terminate an employee who has claimed or received workers' compensation benefits often faces a difficult decision. Retaliatory discharge actions typically boil down to one issue: the employer's motive for discharging the employee. When the employer establishes a valid nonpretextual reason for termination, the employer can mount a successful defense to retaliatory discharge claims. A recent decision from the Illinois Appellate Court First District,Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, provides a good example of one employer's successful defense.

In Vulpitta, the court affirmed summary judgment in favor of Walsh Construction Company (Walsh) finding the plaintiff failed to establish he was terminated in retaliation for seeking workers' compensation benefits. The plaintiff was a carpenter for Walsh who suffered a work-related injury in March of 2008 for which he filed a workers' compensation claim. The plaintiff had a second work-related injury in August of 2011, but was released to return to work with no restrictions the following day and no workers' compensation claim was filed at that time. In December of 2011, the plaintiff rejected an offer to settle his workers' compensation claim for the March 2008 accident. A Walsh supervisor testified the plaintiff was laid off on May 24, 2012, due to lack of work.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
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