Have Off-Work Notes Gone the Way of the Dodo Bird?
Wednesday, December 24, 2014 | 358 | 0 | min read
As defense lawyers and counselors, we have always hated what we call “blind” off-work notes. What we mean by “blind” off-work notes are written notes from an injured worker’s doctor that says “off work” and nothing else. We recently received one from a petitioner’s lawyer and had to laugh to contact the lawyer and say it doesn’t provide enough information for us to do anything. We also made it crystal clear we weren’t going to pay lost time benefits or TTD/maintenance based solely on an “off-work” note due to the lack of information.
Please also remember an injured Illinois worker can receive as much as $1,341.07 in weekly tax-free temporary total disability benefits which is high cotton for most folks. If a worker is getting anything close to the TTD/maintenance maximum, they are happy to provide you a note on a doctor’s stationary with the two words “off work” to supposedly keep having you pay them. We urge our readers, risk managers and claims adjusters to watch very carefully when you are paying almost $70,000 a year to a worker with the hilariously limited information provided in an “off-work” note from a treating doctor.
So What Changed?
Well, one good thing about reading the KCB&A Monday Law Update is we watch legislation, case law and all defense developments in this nutty state’s workers’ comp system. What changed in 2011 were significant amendments to the Illinois Workers' Compensation Act. One of the most important developments was utilization review or UR became presumptively effective in cutting off unreasonable and unnecessary medical care. In short, if you think an injured worker is treating too long, you can contact CorVel, Genex or CID Management and ask them to give you a strong opinion on the reasonableness and necessity of ongoing care. The preliminary UR determination by a generalist is subject to appeal to a specialist but the whole process can take a week or two to get a defined answer. Either the employee or the treater can ask for the initial determination to be appealed. And, as we outline above, the final UR answer is presumptively accurate.
There are three types of utilization review: prospective, concurrent, and retrospective. A prospective review is also known as a “pre-certification” and is the pre-approval process for necessary and recommended medical treatment. A concurrent review takes place while treatment is in process, this is often used during long hospital stays or stretches of outpatient services/physical therapy. Retrospective reviews are performed after treatment has been completed and is an analysis of specific patient data for medical necessity and appropriateness. Please note the Illinois Workers' Compensation Act does not allow a UR provider to opine on causal connection — an independent medical examiner is needed if you disputing that issue.
What also changed in Illinois case law?
In two recent appellate rulings that are generally disliked by the defense industry but have some wisdom to them, the Illinois Supreme Court in Interstate Scaffolding and the Illinois Appellate Court, Workers’ Compensation Division in Matuszcsak laid down a simple rule. In those claims, the reviewing courts made it clear TTD/maintenance has to be paid until the worker reaches “maximum medical improvement,” or MMI. In our respectful view, a doctor who is providing a note to allow the injured worker to continue off work and receive benefits has to do more than just say “off work.” The treater has to effectively say/write “Patient is not MMI and needs [insert medical care].” To us, a blind off-work note won’t suffice. A doctor’s note indicating specific care is required would support a claim for continued TTD.
However, when a treating doctor recommends their patient has to be off work for a longer period of time and also needs more medical care, claims handlers and risk managers can use the wonderful tool of UR to get a quick and simple response to the question—“is this requested care reasonable and necessary?” If the UR answer is no, please don’t pay any more TTD or maintenance. Send the employee (and the attorney, if there is one) a letter consistent with Rule 7110.70 of the Rules Governing Practice and confirm you are stopping TTD. If you need help with the letter to claimant send a reply.
In the simplest of terms, we feel "blind off-work” notes have been rendered worthless and were replaced with the requirement the treater find some additional medical care that will stand up in the cauldron of UR. Please note this concept is only going to work if the Illinois workers' compensation defense industry understands it and starts to implement it.
We recently saw a report from George Pawlaczyk of the Belleville-News Democrat where he outlined an Illinois prison guard was provided full pay for a year based solely on “off-work” notes. If this report is accurate, it indicates the claims handlers for the State of Illinois who work at TriStar don’t understand the new rules and aren’t implementing them. It is possible the claims handlers are “saving money” to not use UR but awarding the worker with more than $60,000 in pay when he could and should have been working. One can only guess how many government workers are taking advantage of what we feel is a major mistake in handling Illinois workers' compensation claims for our “kleptocratic” state. Take a look at the article for yourself here.
Eugene Keefe is a founding partner of the Keefe, Campbell, Biery & Associates workers' compensation defense law firm in Chicago. This column was reprinted with the firm's permission from the KCBA Blog.