Illinois Reform Impressions - 4 Months Later

Saturday, November 5, 2005 | 0

by Michael Rusin

We have a new Workers' Compensation Act signed by the Illinois Governor July 20, 2005. Many of the provisions of the new Act went into effect July 20, 2005, but the effects of the new Act are being felt only gradually.

Many of the changes of the new Act are not scheduled to go into effect until February 1, 2006.

The procedural changes went into effect immediately and we are seeing the results in trials before the Commission. At the end of every hearing, the arbitrator now asks if the parties are requesting a written decision. Generally, employers should always request a full written decision. The failure to request a full written decision including findings of fact and conclusions of law will make any appeal to the full Commission and the courts more difficult.

A short form decision allows a reviewing court to presume that the arbitrator correctly analyzed the evidence and interpreted the law. A full written decision requires the arbitrator to set forth his findings of fact which makes it easier for a reviewing court to see if the arbitrator actually correctly considered the evidence and applied the statute and case law.

In view of the changed statute, we are seeing more petitions for immediate hearing for past and future TTD along with incurred and prospective.

Further, the parties are more easily allowed to offer medical records into evidence despite an opponent's objection. This means claimants' attorneys are able to get ready for trial quicker and they are going to be able to offer records instead of taking medical depositions.

The most significant change in the statute was the creation of a Medical Fee Advisory Board and the requirement that the Commission establish a medical fee schedule by February 1, 2006. Despite the fact that the Governor signed the law July 20, 2005, he has yet to appoint the Medical Fee Advisory Board to begin deliberations to make recommendations to the Commission for a medical fee schedule.

In four months the Commission must have a complete medical fee schedule published so that the fee schedule can be used by employers in evaluating and paying medical bills. Right now that seems like an almost impossible task since the Governor has yet to appoint the Medical Fee Advisory Board. I presume he will do so in the near future. Once the Board is appointed and approved, they will certainly need to work quickly if the Commission is to meet the February 1, 2006 deadline.

There is a significant issue as to whether employers are required to pay medical bills pursuant to the new Act within 60 days. According to the Commission, employers are required to pay bills within 60 days. However, I disagree. I think the 60-day rule only goes into effect after the February 1, 2006 fee schedule is in place. The 60-day rule is part of the fee schedule statute. I don't see how an employer is required to pay a bill within 60 days if the statute doesn't set forththe fee schedule pursuant to which the employer is liable to make the payment. This issue may well be litigated as part of a penalty fee petition.

Similarly, the Commission states that medical providers can't balance bill patients since July 20, 2005. The balance bill provisions are also contained in the medical fee schedule section of the statute. I don't think that providers are enjoined from balance billing patients until after the February 1, 2006 effective date. I think that doctors can still balance bill patients before then. I expect that issue may also be litigated.

There may be some changes in the statute during the Fall Veto Session. One of the changes in the Act was to increase the number of weeks of PPD for the various body parts in Section 8(e) by 7.5%. According to the operation of the statute, this change went into effect for all accident dates July 20, 2005 and thereafter. However, according to the Commission, this increase in the number of weeks was unintended. The legislature actually intended that change to go into effect February 1, 2006. Consequently, there may be an amendment to the Act during the fall veto session of the legislature.

Additionally, employers groups are seeking to amend the new TPD provisions in the Act. The TPD calculation now is unfair to employers and will be frequently litigated. Employers also are seeking a change in the COLA provisions effecting PTD and death cases. Employers want this obligation to stay with the Rate Adjustment Fund. Any changes favoring employers will be difficult to obtain.

The fall veto session ended November 4, 2005.

By attorney Michael E. Rusin, senior partner of the Chicago firm Rusin, Maciorowski, Friedman. Micheal can be reached at merusin@rusinlaw.com or by phone at 312.454.5119.

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