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Reform: An Up to the Minute Primer (Redux) Part II

December 2015

By Francis M. Brady

The following concludes the Firm's review of all "reform" measures currently under consideration in the Illinois General Assembly.[1]

Medical

In 2011, reimbursement of certain medical charges under the existing Fee Schedule was reduced 30%. Even with that reduction, Illinois was, according to the Oregon Workers' Compensation Premium Rate Ranking Summary, still the 7th costliest state concerning workers' compensation. The Senate Republicans added language to SB0994 effectuating limitations of an additional 30% relative to reimbursement to care providers. The cuts, however, are not across the board. They impact specific services as follows: ambulatory surgical treatment centers; anesthesia services; hospital inpatient services, both standard and trauma; hospital outpatient services; and, professional services. No reductions would occur to reimbursement of emergency room services; evaluation, management, or physical medicine services.

Nature and Extent

The business community charges that the reforms of 2011, including the implementation of AMA Standards regarding impairment, simply nibble "around the edges of our tremendous cost problem here in Illinois" (Business Insurance, March 1, 2015). To rectify this imbalance, the language of the Senate Republicans in Amendment 1, SB0994 mandates that the Commission consider independent medical examinations along with treating medical records and, as well, can consider AMA Guidelines as the sole determinant of disability (820 ILCS 305/8.1(b)). To further reduce nature and extent exposures, language proposed by Senate Republicans credits an employer for past whole man recoveries secured by petitioner.

Two Arbitrators Appointed

December 2015

By Mark F. Vizza

Mr. Paul Cellini and Mr. Gary Gayle have been appointed Arbitrators by Governor Bruce Rauner.

Mr. Cellini brings 20 years of experience in workers' compensation law, having practiced in both the public and private sectors. He most recently served as staff attorney with the Illinois Workers' Compensation Commission. Mr. Cellini is a graduate of the University of Illinois and The John Marshall Law School.

Mr. Gayle, too, has long ties to Illinois Workers' Compensation. He has 35 years of experience including service as Executive Director of the Illinois Workers' Compensation Commission. Mr. Gayle is a graduate of the University of Missouri and the Chicago Kent College of Law.

Arbitrator Gayle will be assigned to the Chicago area while Arbitrator Cellini will be assigned to one of the downstate areas. Both should begin handling cases January 1, 2016 when the Arbitrator reassignments take effect.

Challenging Opioid Prescriptions

December 2015

By Jeffrey R. Gibellina

In a December 18, 2015 report, the Centers for Disease Control and Prevention (the "Centers"), announced that "since 2000, the rate of deaths from drug overdoses has increased 137%, including a 200% increase of overdose deaths involving opioids." The report defined "opioids" to "include drugs such as morphine, oxycodone, hydrocodone...fentanyl, and tramadol." Indeed, there has been a "15-year increase in overdose deaths involving prescription opioid pain relievers..."

The need to "encourage (safe) prescribing of opioid pain relievers..." is urgent according to the Centers. While promoting safer practices is laudable, there is an immediate need, particularly in Illinois Workers' Compensation, for a method of attacking the scourge more directly. Business and insurance should be aware that the Illinois Workers' Compensation Act does offer a means by which an employer can contest prescription opioids. Under Section 19(d) of the Act and Section 7110.40 of the Rules Governing Practice Before the Commission, an employer can ask the Commission to decide whether a worker, who has been prescribed opioids, is engaged in injurious practices tending to imperil or retard her recovery or, alternatively, whether the worker who refuses a detoxification program is acting unreasonably.

An Illinois employer attempted to actualize Section 19(d) and Rule 7110.40 in the case of Colleen M. Oberlander v. University of Chicago (2014). Unfortunately, the Illinois Workers' Compensation Commission (hereafter the Commission) held that petitioner did not need to "de-escalate an opioid regimen." The Commission focused on medical evidence from petitioner's primary treater reflecting that should she undertake the de-escalation, she would suffer a "severe reaction," possibly resulting in a heart attack. Another expert engaged by petitioner, testified that he thought that opioid detoxification was merely experimental and, at best, would result in intolerable pain.

Recent Illinois Appellate Court Decisions

December 2015

OLIVER V. IWCC

Petitioner's claim for Workers' Compensation benefits was denied by Respondent based on just a six-day delay in notice, along with the observations of his direct supervisor that petitioner displayed no sign of injury on the alleged loss date. The Arbitrator concluded the denial of benefits was unreasonable, and penalties were awarded. The Commission reversed the penalties award, but this decision was itself ultimately reversed by the Circuit Court.

Noting that: a) Respondent had made no investigation into petitioner's claim whatsoever; and, b) regardless, the Act itself gives petitioner 45 days to report the injury, the Appellate Court upheld the Circuit Court concluding there was no just reason to deny petitioner's claim. The Court determined Respondent had failed to discharge its burden of showing the denial was reasonable. Failing to make any kind of investigation, and then denying the matter solely for a six-day delay, was not only unreasonable but showed bad faith. As such, the Arbitrator's original award was reinstated.

Attacking Medical Costs

November 2015

By W. Scott Trench

Petitioner settled two cases for $24,702.07, representing 20% loss of use of petitioner's right hand and 37.5% loss of use of her right arm. The settlement was consummated even though the provider claimed a balance was owed on billing arising out of the care it rendered to petitioner, mostly physical therapy. While there was no doubt that the balances remained outstanding, there was good reason for non-payment. They represented unreasonable and unnecessary care based on a Utilization Review secured by the Workers' Compensation carrier. Still, the parties wanted to settle the underlying Work Comp case. To achieve that purpose, a settlement was struck with the contract containing language obligating the insurance carrier to indemnify and hold petitioner harmless regarding any collection attempt made by the provider. This obligation included providing a defense.

When the provider did in fact sue the petitioner, BCM was retained to defend, making us, at least in name, "petitioner's counsel."

I filed an Answer and Affirmative Defense in behalf of petitioner, charging that the bills the provider was seeking to collect represented unreasonable and unnecessary care and treatment. Moreover, the charges exceeded amounts allowable under the Workers' Compensation Fee Schedule. The provider countered that any issues of Utilization Review were irrelevant and the Fee Schedule did not apply. It relied on the written contract that the petitioner had signed when she engaged the provider for care, arguing she had not performed under it, plain and simple. While I could not dispute the petitioner had signed the contract, I argued that any "failure" of the petitioner to live up to it resulted from a lack of good faith and fair dealing on the provider's part. (All contracts in Illinois contain the implied covenant of good faith and fair dealing).

Reform: An Up to the minute Primer (Redux)

November 2015

By Francis M. Brady

What follows is a summary of all the legislation¹ under consideration, or potentially under consideration, as of the end of October 2015, arranged according to the major reform issues.

Connecting the Injury to Work

The ease with which an Illinois worker connects her injury to her job unfairly expands the scope of workers' compensation. Legislation introduced this year seeks to redress this inequity by tightening standards concerning how the accident happened; where the accident happened; when the accident happened; and the quality of evidence necessary to prove all three.

The Senate Republicans introduced legislation addressing whether an injury is actually connected to a petitioner's job. In Floor Amendment 1 to SB0994, filed May 22, 2015, the Senate Republicans (and Governor Rauner, who supports this legislation) formalize the notion that activities that are: a) non-incidental to the worker's job or b) incidental to the job but also faced by the general public do not result in compensable accidents.²

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
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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