Major Changes to the Illinois Workers' Compensation System

Wednesday, September 21, 2011 | 0

Trust us, you could care less about most of the rest of the details. Here is the shortest version we can write about what is hitting the Illinois workers' compensation system right now.
 
1. American Medical Association guidelines will now be used, in part, to determine permanent partial disability.
 
Under new Section 8.1b, permanent partial disability shall be determined in part according to the most current edition of the AMA's "Guides to the Evaluation of Permanent Impairment" for injuries occurring on or after Sept. 1, 2011. The AMA guidelines shall define loss of range of motion, loss of strength, any atrophy or tissue mass reduction, or any other measurement that may establish the nature and extent of the impairment. The Illinois Workers' Compensation Commission must base its determination of the level of permanent partial disability on the amount of impairment as defined by the AMA guidelines but also must consider factors such as the occupation of the injured employee, the age of the employee at the time of the injury, the employee's future earning capacity, and evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determent of disability.Risk managers, claims adjusters and attorneys on both sides are going to have to catch up and figure out how to use this new claim tool — it isn’t a maybe, it is the law. We have several defense attorneys who have expertise in understanding and implementing this new standard. We will work with the eminent Dr. David Fletcher of SafeWorks Illinois to start training programs for the industry shortly. While the law says what it says, we point out our understanding there is not one IL WC Commission employee who has any training on the AMA Guidelines. You can buy a copy of the AMA Guidelines, new or used from Amazon online at http://www.amazon.com/dp/1579478883/?tag=googhydr-20&hvadid=5654301197&ref=pd_sl_183l98wpkr_b
 
2. Injured Workers' Choice of Doctor can be limited by providing a PPP choice
 
In the past, Sections 8.1a and 8.a.4 of the Illinois Workers' Compensation Act qualified a petitioner's right to have two separate choices of medical provider along with referrals from both choices of provider. To cut that choice in half, the Illinois employer or its insurance company/third-party administrator can now create an approved network of medical providers and submit that panel to the Illinois Department of Insurance for approval. As you read this several preferred provider programs have pending applications at the state Department of Insurance awaiting full approval. We hope the department gets starts approving and stops stalling.
 
Once PPPs are approved, while the injured worker can opt out of the provider's network, disincentives for doing so are built into the law. After an injured employee notifies the employer of his injury or files a claim for workers' compensation, the employer must inform the employee in writing of his right to be treated by a physician of his or her choice from the preferred provider program or network. Someday, we hope the Illinois Workers' Compensation Commission will get around to creating forms necessary to comply with this section — the new laws were passed by both houses of the Illinois legislature prior to Memorial Day 2011. Do you think the commission might have a one-page form ready for use by Christmas?
 
If the employee accepts the medical provider within that network, that constitutes his or her first choice. Unlimited referrals within the network will not count as another choice. Note, however, employees may not move from doctor to doctor even within the network without a referral. An employee may decline in writing to be treated within the network, but the act of declining constitutes a “choice,” which effectively limits an injured worker to one choice of doctor and subsequent referrals.
 
If the employer doesn’t offer an approved preferred provider program, the employee retains the right to choose two separate medical providers. We feel this is a major change and will result in hundreds of millions in savings for Illinois employers smart enough to sign up for it. If you don’t understand how, send a reply. If you haven’t started the process to get a PPP in place, send a reply and we are happy to assist in any way possible.
 
3. Recovery for repetitive trauma hand injuries limited
 
Section 8(e)(9) reduces the number of weeks for a repetitive or cumulative trauma hand injury to a maximum of 190 weeks, down from 205 that will apply to all other hand injuries. The new section also limits permanency for such claims to a maximum of 15% of the loss of use of a hand unless there is “clear and convincing” evidence of more disability, with an upper limit on recovery at 30% loss of the use of the hand.
 
4. Wage loss differential limited; TPD calculation clarified
 
For injuries on and after 9/1/2011, Section 8(d)1, which provides for wage-loss differential benefits for workers whose injury arguably causes them to get a lower-paying job, has been amended so that an employee is entitled to his wage loss differential on a weekly basis until they reach the age of 67 or five years from the date of any final award, whichever is longer. This caps, to a certain extent, the benefits due in wage-loss claims. We expect a battle may ensue over the “date of loss” in wage-loss claims so the date can arguably be set prior to this limit. In a somewhat related change, the calculation of temporary partial disability, or TPD, is now changed to clarify the calculations are gross earnings subtracted from the average weekly wage with two-thirds of the remaining amount due. This eliminates confusion over how the “net” amount was reached.
 
5. The Illinois Workers' Compensation Medical Fee Schedule dramatically reduces medical reimbursements for care after 9/1/2011
 
In a massive change for medical providers, Section 8.2.(a) rolls the Illinois Medical Fee Schedule back by 30%. Medical implants will be reimbursed at 25% above the manufacture's invoice price, less rebates. Prescriptions that are filled outside a licensed pharmacy will be reimbursed at a rate that does not exceed the average wholesale price plus $4.18 for a dispensing fee.
 
6. Medical bills to become electronic
 
We are told there will be an electronic billing standard to be put into place by the  Department of Insurance by Jan. 1, 2012. No idea if that may actually happen with Illinois’ wildly slow administration.
 
7. Docs and Hospitals to be paid in 30 days
 
Section 19(k)1 now provides medical providers must now be paid within 30 days after the employer has received the bill and appropriate records or face a one percent per month interest charge. The interest will be payable to the medical provider. We understand most medical providers are now smart enough to automatically start adding interest charges.
 
8. Utilization Review Changes
 
Section 8.7 provides for utilization review or an employer-sought expert medical review of the employee's treatment to determine whether it is excessive. UR has to be based upon recognized treatment guidelines and evidence based medicine. Upon receipt of written notice an employer or its agent wishes to invoke the utilization review process, the medical provider is required to submit to the review and make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. Providers who fail to comply might not be allowed to bill the employer or claimant for their services. The reporting requirements imposed on the provider should not be unreasonable or unduly burdensome, and he or she must be given written notice of utilization review decisions.
 
An employer may deny payment for medical services if an accredited utilization review finds treatment is excessive. When that happens, the employee must show by a preponderance of the evidence the treatment in question is reasonably required. The medical professional responsible for the review must be available in person or for deposition by telephone, videoconference, or other remote electronic means. The interview or deposition shall be conducted in a fair, open and cost effective manner. The employer must pay for the interview or the deposition.
 
9. Intoxication defense
 
Section 11 now includes an intoxication defense. Employees will not be entitled to any WC compensation if their intoxication was the proximate cause of the accidental injury or they were so intoxicated when the injury occurred that it constituted a departure from the employment. If at the time of the injury the employee refuses to submit to testing of blood, breath, or urine, the refusal raises a rebuttable presumption the employee was intoxicated and intoxication was the proximate cause of the employee's injury. The amended Act specifies what blood tests are admissible and how evidence is to be preserved. Intoxication can be caused by any substance, not just alcohol.
 
10. WC Fraud Busting
 
New Section 25.5 governs fraud and applies not only to employers and employees but also to medical providers. The new Amendments make WC Fraud a Class A misdemeanor if the amount stolen via fraud is less than $300. If more than $300 and less than $1,000 it is a Class III felony. If more than $10,000 it is a Class II felony, and if more than $100,000 it is a Class I felony.

Eugene Keefe is a founding partner of the Keefe, Campbell & Associates workers' compensation defense law firm in Chicago. This column was reprinted with permission from the law firm's client newsletter.