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Wages for Short Timers

March 2018

By Kelly E. Kamstra

When a claimant is employed with an employer for at least a year prior to their workplace accident, the applicable average weekly wage is relatively straightforward to calculate. In situations where a claimant is employed less than a year prior to his or her workplace accident, a more involved analysis must take place.

Section 10 of the Illinois Workers’ Compensation Act addresses how an average weekly wage is to be calculated in cases where petitioner has worked less than a calendar year. The Commission can either add up claimant’s actual earnings for the period of her employment and divide by the weeks and parts worked; or, if her time has been really short, measure her AWW by the earnings data of a person working in a like job for the year preceding the claimant’s accident.

The question becomes, of course, what is a “really short” period of employment such that the IWCC will look to the earnings of a colleague.

Illinois Court Decisions Hints at Future of Medicare Advantage Reimbursement

March 2018

By Paul W. Pasche

The Medicare Secondary Payer statute clearly states Medicare coverage is secondary to “primary” plans, which include workers’ compensation, liability, or no-fault insurance. If Medicare pays for medical services that should have been paid by a primary plan, Medicare can sue the plan for reimbursement of those payments.

Recent federal court decisions have expanded the term “Medicare” to include the private carriers who offer Medicare Advantage under Medicare Part C. The practical consequences are significant. If you have a claimant who is a Medicare beneficiary and you contact Medicare to conduct a search of conditional payments, Medicare may inform you there are none. But it may be unaware of benefits provided by Medicare Advantage. For such claims the reimbursement information can come only from the specific insurance carrier providing that claimant’s Medicare Advantage coverage. Making it even harder to get accurate information regarding Medicare Advantage, a claimant can change between Medicare Advantage insurers or switch back and forth from Advantage coverage to traditional Medicare. Adding to the confusion, many claimants’ attorneys have little or no clue how to assist with Medicare issues. An effective Medicare compliance program needs to consider and address Medicare Advantage, as well as traditional Medicare.The Medicare Secondary Payer statute clearly states Medicare coverage is secondary to “primary” plans, which include workers’ compensation, liability, or no-fault insurance. If Medicare pays for medical services that should have been paid by a primary plan, Medicare can sue the plan for reimbursement of those payments.

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.

  • 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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