Power point re 2011 amendments to illinois workers' compensation act
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Semelhante a Power point re 2011 amendments to illinois workers' compensation act
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Power point re 2011 amendments to illinois workers' compensation act
- 1. H.B. 1698 The 2011 Amendments to the Illinois Workers' Compensation Act Signed into Law June 28, 2011
Notas do Editor
- First time Agreed Bill Process abandoned since 1975 when major WCA was passed. Following hearings by the House and Senate, numerous bills were filed on behalf of various interests groups. One bill passed the House which abolished the WCA. Entire system would have been thrown into the Circuit Court. This would have taken us back in time over 100 years to a negligence system with common law defenses of C/N, A/R, with all of the delays & uncertainties of recovery. Cooler heads prevailed and HB1698 passed the Senate after being rejected on one occasion. Effective dates for each provision & whether each provision is Procedural vs Substantive
- This was a likely response to the Menard’s Prison situation where hundreds of guards sued for WC for CTS, deQuarvain’s disease & cubital tunnel syndrome being paid following a couple of trials of these cases. Some have recited that the State paid over $10,000,000 for these claims. The goal is to have the State’s cases defended in a more thorough manner as any business would defend such cases. Instead of self administering the Legislature thought the State needs to go outside to hire an insurance carrier or a TPA to help them professionalize the entire claims handling process and do all the fundamental things we take for granted to raise a proper defense to questionable cases such as having IME’s performed, hiring an ergonomist to study the work situation, having surveillance performed, taking statements from witnesses, ordering all the records, etc.
- This provision should be read in conjunction with the provision which abolished the current offices of the members of the Advisory Board effective 6/8/11 and the Governor is to appoint new members of the Advisory Board within 30 days. Obviously, all the appointees will be political. The Governor is required to consult with the Advisory Board regarding his appointment of the initial set of Arbitrator appointments and the appointment of Commissioners (Section 13.1).
- This is important since the the Fraud Unit can now do a more complete investigation of the cases and don’t have to depend on the attorneys providing copies of records to them. Issues were previously raised regarding the completeness and authenticity of records damaging the credibility if the investigations and conclusions they drew. This should help shore up the credibility of fraud investigations and get the Fraud Unit the vital medical information they need to evaluate the cases themselves without having the prevail upon the parties to supply this information to them.
- Specific accident cases are easy. We understand the standard of proof. But what about repetitive trauma cases. Implicit in those cases is a finding of causation by virtue of finding when the “injury manifested itself”. Manifestation is said to occur when it is apparent to a reasonable person that the injury is causally related to the repetitive work activity. Before, many petitioner's attorneys would prove up such cases on the issue of causation with a medical opinion asking whether the work activity could or might have been a causative factor? But now, since the Legislature requires “accident” to be proven by a preponderance of the evidence, we intend to argue that “could or might be a causative factor” will be insufficient to prove causation by a preponderance of the evidence and that will be necessary in order to prove “accident” based on repetitive trauma due to the “manifestation” requirement.
- This is an obvious response to some of the problems we’ve been having downstate with a couple of Arbitrators sending emails including sexual innuendos, trying to subvert the public hearing requirements, providing legal advice to lawyers who appear before them on how to handle cases before other Arbitrators, and the entire Menard’s prison debacle.
- This is largely a response to a situation which had developed over the past few years giving the rising popularity of using employee leasing companies and PEO’s to supply labor to the business community. Unfortunately, some charlatans entered the market charging fees to companies on the representation that all insurance was being provided to them and their employees when in fact none had been purchased. This left some unfortunately claimants chasing employers with no assets looking for benefits and then having the ELC out of business, bankrupt or otherwise judgment proof. To try to cure this problem ELC’s are now required to identify their clients as additional named insureds under their policy, provide the information schedule attached to the policy as well as the Certificate of Insurance.
- Dir. Of Labor to select 2 labor unions to participate in this experimental program. Rumor: Operating Engineers and Labor (previously was ironworkers). ADR to be provided for in CBA of 2 years duration. In addition to the ADR system itself which replaces the dispute resolution system provided for by the WCA with the IWCC, the CBA may provide for the following:
- Now with PPP we have #1 for all employers. Now we do IME’s with anyone we want so this may actually limit choices. Virtually all of our clients have RTW programs. Panel of rehab vendors seems unnecessary since there are so many well qualified ones. Most unions and construction employers already have joint safety committees. OK to abandon the IWCC for private Arbitrators. Not sure where they will come from—present Mediation companies such as ADR? CBA allowing for ADR must be filed with IWCC & approved by Chairman within 21 days or advise parties of deficiencies Construction employer required to notify WC ins. carrier of such an agreement. Decisions of Arb are to be “final and binding upon the parties” and include Findings of Fact & Rulings of Law. Issue: Do the parties have the right to file for a Review to the IWCC (probably not) or Appeal the decision of a private Arbitrator? Act provides: Any agreement that diminishes or increases a construction employers entitlements under the Act or an employee’s entitlement to benefits under thee Act is Null & Void. Does denial of right to Review or Appeal constitute a diminution of entitlements make such an agreement for ADR null and void? Rumor that only insurance co. interested in writing this ADR business specifically is B rated and not well received in the industry (SeaBright or Third Coast).
- Motivation was that investigations of uninsured employers were taking too long and the IWCC was doing a generally poor job in following through on these matters. Also the potential for fines were prohibitively high. Now, employers doing business without insurance can be easily cited, fined and the situation of them being without WC insurance remedied. It appears to be a more workable solution than what we had before.
- If no PPP then employee has the same two choices of medical plus the chain of referrals as he has now. If employer has a PPP he must inform the employee of the PPP in writing on a form promulgated by the IWCC.
- If employee reports an accident and provides written notice to decline the PPP, that declination constitutes one of the employee’s two choices of medical treatment. If the employee seeks non emergency care before reporting an accident, that choice of medical provider constitutes one choice of medical providers; however, he still can treat within the PPP.
- Issue: How to get the 5 year clock started for older claimants entitled to wage loss benefits? Given that once loss of earnings is ascertainable the benefits should be voluntarily paid, how do you get to hearing and a final award if a claimant is not represented and has not filed an Application with the IWCC? This reform has the potential to reduce wage loss exposure by around 33%. Tougher negotiations anticipated and more wage loss cases tried since petitioner's attorney’s will not be willing to discount PCV’s by 25 – 33% as they did with lifetime projections. Problem of serial wage loss awards and credit for same not addressed by this reform.
- This was in part a response to the Menards Prison crisis of hundreds of CTS cases as well as clamor of industry regarding this issue. Issue: Does reduction to 190 weeks apply to all hand cases? What is meant by “cause shown by clear & convincing evidence? Does this mean only that if satisfied you can get up to 30% or does this mean that you have to prove causation by “clear and convincing evidence”?
- No proposed rules pending by the Department of Insurance regarding the requirements for approving a PPP and how employers may implement the PPP’s. Statutory requirements for a PPP 1 – 5.
- Focus will be on the “economic valuation” used to make sure that employees have proper access to treatment that they need and to make sure that medical providers are treated fairly and not economically abused. This is why the administrator of the PPP must file its policies & procedures related to “economic valuation”. The Director of Insurance can deny approval of a PPP if the economic valuation used reduces, delays or deny treatment or restricts access to treatment. Injured employee of employer with a PPP is ONLY PERMITTTED TO SELECT A PHYSICIAN FROM WITHIN THE PPP NETWORK.
- How the treatment works: When employee reports an injury &/or files an App., the employer MUST NOTIFY the employee of the right to treat with physicians in the PPP. First Aid and Emergency Treatment is paid and does not count as a choice of medical provider Employee is entitled to treat with PPP choice #1 and the chain of referral and PPP choice #2 and the chair of referral 3. Employee is entitled to treat with a specialist not in the PPP if the PPD does not have a MD who can provide the treatment & employee complies with preauthorization requirements of PPP. Employer may not unreasonably deny such care. 4. If IWCC finds PPP Choice #2 is improper or inadequate, employee can go outside of PPP using a Sect. 8(a) Petition. Commission must issue decision within 5 days of hearing.
- The amendment first outlines how a physician is to render an opinion regarding impairment. This requires 5 criteria to be evaluated & a three step process to make the evaluation. Then it defines how the IWCC is to determine permanency and outlines the 5 criteria the Commission must use to base a PPD determination.
- The fifth item of what the IWCC must do to determine permanency includes the testimony of the claimant and the “magic question”, what do you notice about yourself at the present time? No single enumerated factor shall be the sole determinant of disability.
- The old days are gone with all of the case law establishing the value of injuries. We’ve been doing it that way now for about 20 years and all of that case precedent will be irrelevant to the new way of determining permanency.
- Fee Schedule was part of the 2005 - 2006 amendments. Charges were set at 90% of the 80 th percentile of charges in each category of treatment adjusted annually by Consumer Price Index U. After 1/1/12 Regions to be reduced: 1.Only Four regions for non hospital care; 2. 14 regions for hospital care. Whether employers will really see a 30% reduction in the medical expenditures is questionable since many have been receiving more severe discounts already with their PPO’s.
- Prior practice: A finding by IWCC that treatment was excessive or unreasonable and bill not awarded to claimant did not forgive claimant of his contractual obligation to pay for the services if the doctor sued him. Now, despite claimant’s contract for medical services, if IWCC finds them to be excessive or unnecessary, the medical provider is prohibited from seeking recovery from the claimant. Probably will need to provide notice of a hearing to the medical provider to avoid violating his right to due process. Issue: What if claimant pays the MD for the service later found to be unnecessary or excessive. Can claimant go to him and ask for his money back?
- Simply makes sense. TPD is a new concept as of 2005 amendments. Before it was often paid as “maintenance” but now the Act gives us the exact formula to be used to determine the amount due. Before adjusters were subtracting part time earnings from the TTD rate and paying the balance as maintenance and all types of variations on that formula to make a claimant whole, or simply refusing to pay anything since TPD was not provided or under the Act.
- UR first introduced to Illinois with 2005 amendments. Since the UR had no teeth they were a big flop. When they were used the IWCC often did not give them deference, particularly if there was a treating opinion to the contrary. Now the UR uses nationally recognized “treatment guidelines” and “evidence based medicine”. IMPORTANT: necessary first aid and emergency treatment is excluded from UR.
- Medical providers are now required to submit to a UR when the employer provides them with written notice that the UR process is being invoked. The medical providers are now required to make reasonable efforts to provide timely and complete reports of clinical information to support a request for treatment. If a medical provider does not make reasonable efforts to do so the charges for treatment MAY NOT BE COMPENSABLE OR COLLECTIBLE. Now, if an employer denies treatment based on the argument that the treatment is excessive or unnecessary it MUST BE DONE USING ONLY A UR (not an IME). OK to use an IME in conjunction with a UR, if for example, causation is questioned, but now UR must be the basis of denial of unnecessary treatment.
- A rebuttable presumption is NOT established with the UR but it SHIFTS THE BURDEN OF PROOF TO THE EMPLOYEE to show a variance from the standard used by the UR MD is reasonably erquired to cure or relieve the effects of the injury.
- The amendment provides that an admissible UR shall be considered by the IWCC along with all other evidence (obviously the feeling was that before the IWCC did not pay adequate respect to the significance of a UR).
- Talk about the Swiatek case. Cart accident at construction site, positive drug test hours later, failed testimony of a toxicologist that petitioner was intoxicated at time of accident but could not determine at what level or say that the intoxication was the sole cause of his injury.
- An attempt to professionalize the Commission and emphasize training re Fraud investigation, use of UR’s and use of AMA Guidelines for determining permanency.
- Effective immediately, Governor Quinn named Mitchell W. Abbett, Richard Aleksy, Aaron Anderson, Michael Carrigan, John Carpenter, Mark Denzler, Phillip Gruber, David Halffield, William Lowry, Mark Prince, Sean T. Stott and David Vite to serve as members of the Workers’ Compensation Advisory Board.
- Training to include: professional & ethical standards; detecting fraud; standards for evidence based treatment & evaluation of PPD, i.e., UR & AMA Guidelines
- A lawsuit was filed by five Arbitrators challenging the statutory termination apparently claiming a vested right to their earlier civil service appointments and also claiming that they were defamed by the Governor.
- This provision applies to all existing cases.
- Less than $300 Class A Misdemeanor; more than $300 but less than $10,000 Class 3 Felony; more than $10,000 but less than $100,000 Class 2 Felony; more than $100,000 Class 1 felony.
- NCCI has recommended a reduction of the voluntary advisory insurance rate by 8.8% effective 9/1/11 with anticipated savings of $264,000,000 from these legislative changes. 7.4% of the savings come from the Medical Fee Schedule; .8% from wage loss cases; .6% from CTS changes. This does not appear to factor in the PPP, UR and AMA Guidelines provisions.
- Average weekly wage Causation standard Overrule Interstate Scaffolding AMA Guidelines as only standard for permanency Overule Hydraulics and permit some contact with treating physicians Ask audience what changes they want to be made.