Mandatory Insurer Reporting User Manual Released 8-04-09

8-18-09

We often report on important developments involving Medicare coordination with Illinois workers compensation claims. For those following the Mandatory Insurer Reporting requirements (MIR), the Centers for Medicare & Medicaid Services (CMS) released an updated Liability and Workers Compensation Insurance User Guide Version 2 dated 8-04-09. The 225 page document is offered to help insurance carriers and administrators understand upcoming claim reporting requirements for cases involving Medicare beneficiaries.

CMS also released an "Alert" dated 7-31-09 to define who is required to report under the new law -- that is anyone that CMS terms a Responsible Reporting Entity (RRE). The definition essentially boils down to any party that is responsible to pay the claim which may include the members of insurance risk pools, self insureds companies, any company with a deductible and workers compensation insurance carriers.

This document is in draft only and is subject to revision after additional public comment. It attempts to solve the double reporting problem with companies that keep deductibles or self insured retentions (SIR) and tries to define exactly who or what entity is responsible for the claim reporting.

Chicago Workers Compensation Attorney -- 8-18-09

Illinois Workers Compensation Medical 2 Doctor Rule

8-11-09

Illinois workers compensation allows injured workers to have a choice of picking two doctors for treatment. Hospital emergency care does not count as a choice of doctor but after that, if you start medical treatment with any physician, it is going to be considered as using one of your two choices for a doctor.

Your initial doctor can refer you to as many specialists or therapists as are necessary to evaluate and treat your injuries. But say you have a disagreement with your 1st doctor or you feel not enough is being done to treat your injury. Section 8(a) of the Illinois Workers Compensation Act allows for a 2nd independent choice of doctor at the employer's expense under workers compensation. A third choice of doctor will not be paid for as a medical expense under Illinois workers comp to prevent doctor shopping.

All injured workers should be aware of the two doctor rule or they may find themselves paying out of pocket for medical care that should have been covered in workers compensation medical benefits. And, an Illinois workers compensation attorney will not be able to force payment of those medical bills because by law an employer is not responsible for a 3rd choice of doctor.

For a review of basic rules and Illinois workers compensation benefits, see our web site for a short article outlining basic benefits. A recent court case also reinforces the two-physician rule where a worker received some free acupuncture, it did not count as a choice of physician. See the Appellate Court's most recent decision on the 2 doctor rule at Comfort Masters (May 2008).

For further questions concerning medical treatment or workers compensation benefits contact a Chicago Workers Compensation attorney for answers and assistance. Our Attorneys at WorkComp Chicago have handled Illinois work injury claims for over 20 years with a 98% overall success rate. Aggressive Illinois workers compensation attorneys with a strong record of success in workers compensation settlements, trials and appeals.

Chicago Workers Compensation Attorney 08-11-09

Illinois Truckers as Independent Contractors or Employees; Nature of the Business Test Matters

8-10-09

Illinois adopted a stricter test in 2007 that favors classifying workers as an employee rather than as an independent contractor. No single factor determines whether a worker will be classified as an employee or an independent contractor but the factors that will be considered are as follows:

• whether the employer dictates the person's schedule
• whether the employer pays the person hourly
• whether the employer withholds taxes
• whether the person can be discharged (fired) at will
• and most important whether the employer may control the manner in which the work is done

Every case will of course be looked at individually but the courts will now look at whether the worker's services form a regular part of the employer's general business or whether their duties are part of their own separate business. If that's so, many workers will now be presumed to fall under workers' compensation coverage like in the case of many truck drivers and construction workers who are regularly and wrongly named as independent contractors.

There is a growing trend to classify owner-drivers of trucks as employees when they work continuously for a company and that driving forms an integral part of the employers business. By the court looking to the "nature of the business" test more workers who are labeled independent contractors will be treated as employees for workers compensation and be entitled to Illinois workers compensation benefits.

The Illinois Supreme Court announced the new "integral nature of the business" decision in Roberson (May 2007)

Many Illinois workers are wrongly classified as independent contractors to save the employer from workers compensation premiums and withholding taxes. Injured workers should contact an Illinois workers compensation attorney to determine whether they should be covered by Illinois workers compensation.

For questions call a Chicago workers compensation attorney for answers and assistance with a claim for benefits at info@workcomp-chicago.com.


Chicago Workers Compensation Attorney 8-10-09

2008 Annual Report Illinois Workers Compensation Commission

7-06-09

On June 30, 2009, the Commission released its Annual Report of Operations for 2008. Highlights indicate that total claims of 57,515 were up slightly 1.5% from previous year totals of 56,685 including both filed claims and pro se settlements. Total claims were down approximately 8% from FY2004.

The Commission operates the state court system for workers' compensation cases. In Fiscal Year 2008, the Commission's operating expenditures were $18.6 million. The Commission's end of year headcount was 162 employees, plus the chairman, nine commissioners, and six Self-Insurance employees who are counted separately, for a total of 178 people. Illinois provides 33 Arbitrators statewide for hearings, settlement approvals and pretrial in approximately 30 hearing locations throughout the state.

The Insurance Compliance unit collected $1.8 million in fines in FY2008 from 66 uninsured employers with 900 workers that were found to be operating without workers’ compensation insurance. If the Commission finds an employer knowingly and willfully failed to obtain insurance coverage, they can be fined up to $500 for every day of noncompliance, with a minimum fine of $10,000. Corporate officers may be held personally liable if the company fails to pay the fine. Under the new compliance laws which took effect July 20, 2005, an employer may also face criminal charges and/or a work-stop order for failing to obtain workers' compensation insurance coverage.

Each year roughly 250,000 work accidents occur in Illinois but only claims involving 3 days or more lost time from work are reportable to the Commission. Approximately 80,000 injuries are reported by employers each year involving 3 days or more lost time. Out of all reportable injuries, approximately 60,000 formal new claims are filed each year by either a formal Application for Benefits or as an original settlement.

In an original settlement, the worker generally does not have an attorney 95% of the time and settles direct with the employer or the insurance carrier. In the year 2008, the annual report reflects original or “pro se" settlements were filed in 9,322 cases representing 16% of all claims. Overall, an injured worker hired an attorney 84% of the time with a formal filed Application for Benefits.

Not surprisingly, Chicago and the collar counties with hub cities within an hour or so from Chicago account for approximately 60% of all Illinois work injury claims. Also not surprisingly, back and neck claims accounted for the largest sector of reported injuries totaling 20% of all injuries in 2008.

Thanks to the addition of a third panel of Commissioners deciding cases at the Review level, in 2008 the formal written decisions from the Commission on appeal from an Arbitration Decision increased by 13% from 2007. A total of 1,195 formal Review Decisions were entered in FY2008 representing 2% of all claim closures. Dismissals accounted for an alarming 9% of cases disposed of while settlements represented 86% of all case closures.

Interestingly, when an injured worker filed an appeal to the Review level before the Commissioners, benefits were increased only 15% of the time. In appeals by the worker, benefits were actually reversed or decreased in 13% of the cases. The great majority of appeals by the worker resulted in no change of the Arbitration Decision in 72% of decisions in appeals filed by the employee.

In employer appeals to the Review stage, benefits were affirmed almost 66% of the time. However, the employer was successful in obtaining a reduction or a decrease in benefits awarded from the Arbitration Decision in 21% of the appeals filed by an employer. Outright reversals were obtained in only 6% of the Review Decisions filed and benefits were actually increased in 6% of the decisions appealed from.

The average time that a case takes from filing an Application for Benefits through the final formal Decision on Review is approximately 4.2 years. That number is deceptively high because in most cases the attorneys and arbitrators are forced to wait until medical care has concluded before an assessment of the permanent nature of the injury can be made or while waiting on final medical restrictions and assessing a return to work status.

The actual appeal times on Review decreased during 2008 to 16 months or 1.33 years from the date of the Arbitration Decision. This represents a significant improvement in delay times on Review. In 19(b) Emergency Petitions for Benefits, the wait time for a Review Decision was under one year at 11 months.

Most litigated cases at the Illinois Commission are settled by and between the attorneys. While total claims disposed of in 2008 totaled 59,533 between settlements, decisions and dismissals, actual formal Arbitration Decisions were issued in only 3,594 cases representing a ratio of 6% of total claim dispositions.

In comparison, the average time it takes for settlement from date of application for benefits until the date of settlement approval was 1.9 years.

The take away message for most may be that the Commission works best in the vast majority of claims by resolving disputes and contested cases through compromise settlement. Parties may be best served by representation with an experienced Illinois workers compensation attorney to arrive at an early compromise settlement rather than face the uncertainties and delays of trial and appeal.

It should be noted that Arbitrators in Illinois perform a significant crucial key function in supplying sound pretrial recommendations to assist attorneys in resolving disputed areas of disagreement in contested cases.

Formal Decisions of the Arbitrator were appealed in only 48% of cases that went to trial and decision so the informal pretrial recommendations by the Arbitrator weigh very strongly with the parties. After all, it's not nice to ignore the pretrial recommendations of the person most crucial to deciding the disputed issues of the case.

Contact an Illinois workers compensation attorney for assistance at (312) 541-0049 or email our office at info@Workcomp-Chicago.com.

Chicago Workers Compensation Attorney -- 7-06-09

IL Workers Comp Medical Fee Schedule Changes

7-05-09

The Illinois Workers Compensation Medical Fee Schedule adopted new Medicare Medical Severity codes for hospital inpatient services. The new MS-DRG codes are now part of the Illinois Medical Fee Schedule as of June 30,2009.

Medicare changed its inpatient codes from the DRG (Diagnosis Related Group) to the MS-DRG (Medical Severity-Diagnosis Related Group) to account for degrees of severity in medical treatment and the Illinois Workers Compensation Commission has now followed suit with modifications to adopt the changes. This will only affect workers compensation treatment for hospital inpatient services.

To allow transition time for the industry to adopt the new payment protocols, the Workers’ Compensation Medical Fee Advisory Board and the Commission have asked providers and payers to follow a July 31, 2009 effective date.

For all prior dates of treatment, the inpatient fee schedule uses the older DRG codes. Providers and payers should work to translate these bills using the CMS crosswalk, Grouper Version 24.0.

No separate right currently exists for medical providers to assert a claim for payment of related medical bills at the Illinois Workers Compensation Commission. However, the law does provide for interest payments and penalties on non payment of injury related medical invoices.

To enforce payment of medical bills for workers compensation, providers will require the assistance of an Illinois workers compensation attorney to file an application on behalf of the patient. For more information or assistance, contact our office.

Chicago Workers Compensation Attorney -- 7-05-09

Good Samaritan: Hip Check to Vending Machine Awarded

6-22-09

In an unusual claim for benefits, an employee fractured his hip when he hip checked a vending machine to help a female coworker get a bag of potato chips. The vending machine hip check case even received some national attention. The worker hit the vending machine hard enough that he suffered an impacted, displaced fracture of his right hip and required immediate surgery.

Over the objections of his employer, compensation was awarded for both disability and medical benefits. Hip checking the vending machine was not part of his regular job duties but the Commission allowed compensation under the “personal comfort” doctrine. To most people, this might seem a bit unusual but the law provides that personal acts like going to the bathroom or going to the break room are generally considered to be “in the course of" employment and are considered a normal part of expected "personal comfort" necessary for regular employment.

The Appellate Court in Circuit City v. Illinois Workers Compensation Commission (2nd Dist, 5/21/09, modified 7/9/09) viewed the hip check case more like a “ Good Samaritan” case, in that he was coming to the aid of a female coworker. The injured worker testified he bumped the machine with his shoulder rather than an actual hip check and it was further noted that the employer knew that the machine was broken. In this instance, the Appellate Court said that the Commission could find it compensable as long as the actions were reasonably foreseeable.

Past “Good Samaritan” cases have awarded compensation for a traveling employee killed while helping a stranded motorist while driving on a service call (Ace Pest Control, 1965) and in the case of a Chicago harbor master who jumped in to save someone from drowning in Lake Michigan (Metropolitan Water Dist., 1995). The test for compensation depends on whether the actions are reasonably foreseeable.

Thomas A. Robinson, J.D., of Larson's Worker's Compensation Law(LexisNexis) wrote a short article for the Workers’ Comp Kit Blog describing the vending machine incident as a “Chivalrous Act” in coming to the aid of the female coworker. The case is also posted on Illinois Top Cases on the Lexis Larson's WC Law Center.

Larson’s Workers’ Compensation Law, § 21.01 points out that “personal comfort” acts can be considered part of regular employment but they also note that the acts cannot be unusual or unreasonable.

This case could have just as easily been denied by the Illinois Workers Compensation Commission as an unreasonable act. In fact, the claim probably would have been denied if the injured worker was trying to retrieve his own bag of potato chips rather than assisting a female coworker. The "Chivalrous Act" of helping a female coworker brought it more in line with prior awards under past "Good Samaritan" cases.

To review Illinois workers compensation benefits, contact an Illinois workers compensation attorney.

Chicago Workers Compensation Attorney -- 6-22-09

Settlements: Medicare Set Aside Future Drug Costs and Uniform Pricing

6-20-09

Employers may soon see a spike in future drug costs for settlements going through the MSA approval process after June 1, 2009. Medicare will begin independent pricing of future drug costs in Workers Compensation Medicare Set Aside proposals as of June 1, 2009 using Average Wholesale Price (AWP) for drugs based on prices listed in the RED BOOK (r) Drug References.

CMS will no longer recognize other pricing methods using workers compensation contractual discounts for prescription drugs in Medicare Set Aside proposals. What does this mean?? Carriers and employers will be required to fund future drug costs based on the average wholesale price of drugs in use before any contractual discounts, before any WC state fee schedule discounts or before any future shift from brand names to generics. MSA submissions can no longer take advantage of pricing in the "Doughnut hole" into MSA proposals by excluding funds for Medicare Part D prescription deductibles.

The new pricing will assume a lifetime supply of drugs in use at the time of the MSA proposal. CMS will also look to the past 2 years of drugs used and to the expectations for future drug use based on the treating doctor's recommendations.

This recent change adopting uniform pricing is designed to eliminate some of the past abuses in under pricing MSA drug proposals such as "Doughnut hole" pricing and utilization review assumptions of tapering use of narcotics which were not supported by the treating physician's records.

The upshot for most employers is that future drug allowances in a MSA proposals may cost more than if those medical rights had remained open under workers compensation. Carriers may be better off leaving the prescription drug rights open under a settlement and paying for the future drugs using a qualified assignment and purchasing an annuity. That option would allow the carrier or employer to continue to use discounted pricing or use applicable state fee schedules and also let an employer be the residual beneficiary on the annuity policy (should the worker die early) and stand to receive a return of some portion of the money rather than fully funding lifetime drugs at average wholesale prices to satisfy Medicare MSA pricing requirements.

MEDVAL compared the increase in costs from their normal prescription pricing methods to the new average wholesale pricing (AWP) and came up with an astonishing $1.4MM difference on the first 17 cases reviewed. If that jump in pricing is reflective of expected average MSA cost increases under the new AWP pricing requirements, it would truly be a bitter pill to swallow for most employers and most workers comp carriers.

Contact our Chicago workers comp attorneys for questions on Illinois workers compensation settlements and MSA requirements.

(8-23-09) Update: PMSI records significant increase in MSA allocations under new prescription drug guidelines

Chicago workers compensation Attorney -- 6-20-09

Failure to Quit Smoking Defense: Disability Benefits and 3rd Surgery Awarded

6-14-09

Smoking alert. In a recent case, a smoker was denied disability benefits and denied a new surgery by his employer because he could not quit smoking following his low back surgery. While the current social and political consensus is that tobacco smoking is evil, bad and harmful, Illinois has yet to make it a criminal activity sufficient to deny workers' compensation benefits.

In Global Products (1st Dist. June 9, 2009) the IME defense doctor blamed a failed back fusion on smoking. Based upon the IME opinion, the employer denied temporary disability benefits and denied a proposed 3rd lumbar surgery. The arbitrator and the Illinois Workers Compensation Commission disagreed and awarded a full 6 years of temporary disability benefits, a third lumbar fusion surgery and awarded penalties and attorneys fees for the unreasonable denial of benefits.

Smoking or obesity are not yet in and of themselves a legitimate reason for an employer to deny surgery or to deny disability benefits in Illinois. That did not stop the employer in Global from arguing that smoking was a form of "injurious practices" under Section 19(d) of the Illinois Workers Compensation Act. The employer argued that continued smoking was a deliberate intentional act undertaken to retard the medical recovery.

The doctors agreed that there is an increased risk of fusion failure in smokers. Smokers are well advised to quit smoking to increase their healing, decrease their recovery time and increase their chances for a successful back fusion. It is clear that the doctors did advise the injured worker to quit smoking. The law is also clear that "If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical, surgical, or hospital treatment as is reasonably essential to promote his recovery, the Commission may, in its discretion, reduce or suspend the compensation. 820 ILCS 305/19(d)

There was no evidence that the worker had deliberately attempted to impair his recovery. In fact, the injured worker did make an unsuccessful attempt to quit smoking. Anyone who has tried to quit smoking knows that it is not an easy proposition.

Our Appellate Court found that the employer could "reasonably rely" upon the IME opinion blaming a failure to quit smoking in cutting off benefits and so they denied the award of penalties and attorneys fees.

What is our court saying ?? That the law did not support the employer's denial of benefits based upon a failure to quit smoking but that the "smoker defense" was reasonable enough to avoid penalties and attorneys fees. Was the court creating a new defense sufficient to tie up benefits without the imposition of penalties and fees for improperly delayed benefits?? Is this the message or are they really emphasizing that reliance on an employer's IME opinion will avoid penalties?? Are obesity and diabetes the next "reasonable defenses" sufficient to deny benefits since they are also conditions allegedly within the worker's control that impair and prolong recovery as long as the IME doctor blames these two known risk factors for a delay in recovery?? In our view, probably not. Obesity and diabetes are much harder to control.

See: Larson's Workers' Compensation Law § 10.10 Refusal of Reasonable Treatment: an unreasonable refusal to follow medical instructions will usually lead to a loss of disability benefits attributable to the refusal but, when the recommended treatment involves things like weight loss reduction .... the courts have generally been far less stern, ... (the courts) are reluctant to stigmatize human failures as a ''willful refusal.'' Here, as in the case of (refusing surgery), the test of reasonableness of the worker's refusal applies.

Although an employer's reliance upon a medical opinion will generally avoid penalties, here, that medical opinion did not support an existing defense to the payment of compensation under Illinois law. The Court held that failure to quit smoking does not constitute an intervening act breaking the chain of medical causation nor does it constitute a willful, intentional and deliberate interference with recovery.

I agree with the dissent that denying workers compensation disability benefits without an existing legal basis is unreasonable and it should generally lead to an award of penalties against the employer.

To review workers compensation benefits and existing defenses contact our Chicago workers compensation attorneys.

Chicago Workers Compensation Attorney -- 6-14-09

National Study of Illinois Workers Compensation Proposed

6-1-09

H.R. 635, the “National Commission on State Workers’ Compensation Laws Act of 2009” (Jan. 22,2009) would create a federal commission to study the state-based workers’ compensation insurance system and make recommendations for improvements. Under the proposal, the Commission would have the authority to hold hearings, issue subpoenas, take testimony, and receive evidence. It would be required to make recommendations for improvements to the workers compensation systems within 18 months. You can expect the study to recommend adoption of greater nationalized standards.

I would expect that any suggestion for a nationalized system of medical payments would be modeled after Medicare and severely reduce current medical payments to our doctors and hospitals for workers compensation injuries.

The National Association of Professional Insurance Agents recently came out to oppose to the proposed study as unjustified and simply a waste of taxpayers’ money.

To read further details, see "PIA Opposes Federal Commission to Study State Workers Compensation Laws on LexisNexis. LexisNexis provides the Larson's Workers Compensation Law Center for valuable resources for attorneys and the workers compensation industry.

Chicago Workers Compensation Attorney -- 6-01-09

Medicare Set Aside Approval Proposed Changes

6-01-09

Reform legislation has been introduced to streamline the Medicare Set Aside review process. Representative John Tanner (Tennessee) re-introduced legislation H.R. 2641 ( May 21, 2009) to amend section 1862 of the Social Security Act. The bill proposes to establish an exemption for low dollar workers compensation settlements and an exemption where there is no expectation of future medical care related to the work injury.

The bill establishes (1) a safe harbor for low value settlements of $25,000 or less, (2) an exemption where there is no expectation of future medical care and (3) an exemption where the injured worker is unlikely to become eligible for Medicare within 30 months after the date of the settlement.

Importantly, the proposed bill provides a definition of "compromise settlements" which are now already exempt from the need for Medicare set aside arrangements under the federal regulations but currently the word "compromise" is not adequately defined to provide a real exemption. Under the new bill, "compromise settlements" would mean a settlement where the workers' compensation claim is denied or contested, in whole or in part and the settlement does not provide for full payment of benefits.

Where a set aside agreement is required, the bill mandates set-aside account dollars shall be based on the particular state workers' compensation fee schedule in effect as of the date of the settlement.

Importantly, under the proposed bill, Medicare would allow for a reduction of the Set Aside Account by the costs and expenses incurred in establishing, administering, or securing approval for the Medicare set-aside. That includes attorneys fees, third-party vendors, and any appointed trust account administrators. The current system does not allow for reduction of Medicare set aside accounts by costs incurred for attorneys fees or costs for approval and administration.

In an effort to achieve an equitable assessment for future medical expense accounts, the bill also proposes a proportional % adjustment for "compromise" settlement agreements. In general, the proposal allows the parties to reduce the set aside account amount in direct proportion to the full value of the claim if there were no disputes involved. The percentage reduction for the set aside account would be equal to the % of benefits denied or contested out of the settlement as compared to full value.

This section will cover all those settlement agreements that are currently partially disputed and represent a real reducuction in workers compensation settlement value based on the disputes in the case. This proposal actually attempts to correct the current process whereby parties are forced to fund full future medical amounts even though the benefits in the claim are disputed and even though the injured worker is only receiving half or less of full value because of the disputed issues in the case.

Time wise, the bill proposes a 60 day period for the government to approve or disapprove the set aside proposal. Under the current system, we have had MSA approval take from 6 months to as long as a year and a half after reaching a settlement agreement in the workers compensation claim. Meanwhile, the injured worker continues to incur medical bills for medical care and prescription expenses but they do not have access to the Medicare set aside funds. While the insurance carrier is waiting for CMS approval on the MSA, most carriers will not pay the medical bills waiting to see if Medicare approves the settlement.

The proposal is also designed to set out standards for the review process by CMS contractors and attempts to set review standards for amounts to be reserved in Medicare set aside accounts.

The current status of the bill as of this writing, HR 2641 has been referred to the House Committee on Ways and Means and to the Committee on Energy and Commerce.

chicago workers compensation attorney -- 6-01-09