Editor’s comment: These questions were asked by a client and we provided our thoughts. We would love to hear yours about these tough issues.

The background to the questions:

• Illinois Employer A doesn’t exactly have a light duty program.
• The injured worker will eventually be able to return to full work at Illinois Employer A when recovered from an undisputed work injury.
• During their recovery, the employer sends them to volunteer in a non-paid position at a not-for-profit organization.
• TTD was paid while the employee was showing up and working at the not-for-profit organization.
• Their goal was to avoid having the worker sitting at home watching Oprah.

Can the claimant refuse such work?

In the recent ruling in Interstate Scaffolding, the Illinois Supreme Court cited Hartlein v. Illinois Power and Hayden v. IWCC to rule an injured worker who is recovering from injury has to do the work a doctor says they can do.

We feel if they refuse such work, TTD is not due.

Is it vocational rehabilitation to put a worker into a light duty position at a charitable or not-for-profit company?

Without intending to be rude, the answer is nobody knows.

Vocational rehabilitation is not clearly defined in the statute or rules.

We have no problem calling it vocational rehabilitation to put someone into such a position because you are rehabbing them to return to their vocation!

But it truly doesn’t make much of a difference—you owe either temporary total disability or temporary partial disability in Illinois if a worker returns to an unpaid position or a low-paid light duty position while recovering from a work-related injury.

What if they get injured in the light duty position?

See the analysis in ABF Freight Systems v. The Workers’ Compensation Commission

We don’t agree with it but that appears to be the law in this state and we have to adjust.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: One of our national clients advised of a recent trend—drug compounding and repackaging to make the simple pharmaceutical process much more expensive. In follow-up to our first article, we note in recent years, compound drugs and drug repackaging have gone hand-in-glove as ways in which WC claims handlers often have no idea what they are paying in handling Illinois workers’ compensation claims. As we have advised on numerous occasions, it is amazing Illinois has a medical fee schedule without a prescription fee schedule. This change won’t happen until Illinois business demands it.

Compounded drugs are hand-made rather than mass-produced, and supposedly tailored to the needs of individual patients. These practices are mainly regulated by the states instead of the federal Food and Drug Administration. The disparities resulting from 50 sets of rules and levels of technical and inspection prowess shouldn’t be allowed to continue. Repackaged drugs are prescription or over-the-counter drugs taken from initial drug producers and repackaged and repriced, usually by physician/clinic dispensers. The cost is from two times higher to twelve times higher. In one study, repackaged drugs accounted for less than a third of all prescriptions but over half of all dollars paid. The concept is especially troubling when one considers the overwhelming majority of the top 20 drugs are generic.

As has been the case for the last several years, the average prescription cost of “compound drugs” is well over the national average. A growing percentage of the providers dispensing compound drugs submit via paper, and many payers have had limited capabilities with adjudicating these bills at the appropriate or allowable rates. While the number of the compound drug paper bills is currently a small percentage of most national payers’ overall prescription volume, the dollars associated with these transactions and the potential savings can be high.

With many states’ workers’ compensation laws, the rules vary regarding how a payer can adjudicate prescription charges. For example, California’s billing regulations require the providers (pharmacies, compound drug companies, physicians, etc.) to submit a detailed list of the individual ingredients in each compound prescription. In addition to significantly overpaying, payers encounter other drug treatment and billing-related shortcomings and challenges when managing compound drugs.

Some of the issues include:

• Double billing–compound drugs are not required to have nor do they use standard national drug code (NDC) numbers, and therefore it is difficult to identify when multiple fills for the same prescription are being provided. In addition, some times the compound pharmacy companies also use different third-party biller names, further complicating a payer’s ability to identify this type of situation.
• Drug interactions–since individual ingredients of the compound drug are not captured as part of the prescription transaction within the claimant/patient profile, there is a high risk for potential drug interactions (adverse effects) or overdoses when other drugs in a patient’s overall drug regimen are being combined with these compound prescriptions. In addition, the lack of NDC-level detail does not allow for drug utilization edits to occur on these transactions. The only way to solve this issue is to record and adjudicate each individual ingredient within the same pharmacy management system, using the same patient profile and applying the same clinical review edits and rules.
• Overbilling–occasionally compound drugs will include the use of higher priced brand name drug ingredients regardless of whether there is a generic alternative available. The lack of NDC detail within a pharmacy management system will not identify these types of issues. There is also a frequency of overbilling compared to the allowable compound production time billing rate.
• Therapeutic duplication with different dosage forms–dispensing the same drug in oral and topical form and avoiding the appropriate drug utilization edits since they aren’t using standard NDC numbers.

On the closely related repackaging issue, it is difficult for WC payers to receive accurate prices for repackaged medications, which, by definition, mean a pharmaceutical product is removed from the original container with an original NDC and put into a new container with new quantities, therefore requiring a new NDC, with a new repackaging company label and price for the medication. By its nature, the process can result in inaccurate and overpriced medications. Some states other than Illinois have been attempting to help payers manage the process better, after they have begun to understand the cost-control issues.

We hope to see such prescription and over-the-counter drug abuses end and urge our administrators to get involved to help Illinois business counterattack abuse.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: Last month the Medicare Secondary Payer Enhancement Act of 2010 (MSPEA) was introduced in the U.S. Congress as proposed legislation. It contains some significant changes from the current law, the Medicare Secondary Payer Statute (MSP). Many observers on both sides feel the current Medicare Secondary Payer (MSP) system is inefficient and creates problems for Medicare beneficiaries, the Centers for Medicare and Medicaid Services (CMS), and anyone who settles a claim involving Medicare liability. Proponents of the new law feel the Medicare Secondary Payer Enhancement Act of 2010 (MSPEA) will improve the system to speed the return of funds to the Medicare Trust Fund and promote settlements.

The MSP system was appropriately intended to ensure Medicare and U.S. taxpayers do not pay for health services when another party has primary responsibility – either as a group health plan, workers compensation plan, or other party with liability for the care provided. Unfortunately, current inefficiencies and problems in the system make it nearly impossible for many parties to determine how much is owed to Medicare. If an entity with MSP responsibility disagrees with Medicare’s after-the-fact calculation, it does not even have a process for appealing their decision, regardless of how inappropriate or flighty it might seem.

The MSPEA departs from the current law in several significant ways. First, MSPEA proposes a “final demand” may be obtained prior to any relevant settlement, judgment, award or other payment. The current law only allows a “final demand” to be made after settlement, judgment, award or any final payment.

Additionally, the new law provides if CMS fails to respond in a timely manner, it may absolve the claimant from any liability and obligation to pay. The change is proposed to help shorten the current process and provide more accurate estimates for all parties.

Alternatively, MSPEA also would allow for a “good faith” estimate based upon billing data of the conditional payment amount to be tendered directly to CMS. In response, CMS would be able to challenge the estimate.

The MSPEA proposes an “extended” right of appeal to “the applicable plan involved, or an attorney, agent or third party administrator on behalf of such applicable plan”. MSPEA also proposes a change of wording under Section 111 which currently reads, “shall be subject to a civil money penalty of $1,000 for each day of non-compliance” to “may be subject to a civil monetary penalty of up to $1,000”.

MSPEA proposes exempting claims under $5,000, imposing a 3 year statute of limitations on the U.S. government and discontinues the use of social security and health identification numbers for reporting with CMS.

Keep your eyes on this spot for progress on passage and implementation of the new law. This article was drafted by our intrepid paralegal-soon-to-be-lawyer Nicole R. Zachary and we thank her for her research and hard work.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Editor’s comment: Everyone in the claims industry knows who they are but what can we do about them? Please understand we cannot name names in an article such as this—to do so would result in an immediate and expensive libel action from each and every doctor and clinic we named. When you run an ongoing medical scam, you are generally very sensitive about “defending your good name” and most of these joints and scamming physicians/chiropractors in Illinois are ready, willing and able to sue at a moment’s notice.

Our favorite story about medical provider abuse came from a Petitioner’s attorney who told us of a clinic in the central part of Chicago—they were sending a bus out to pick up a patient in a distant suburb and bringing him to town for care. The clinic was billing over (or overbilling) $5,000 per long-distance visit. How do we stop this sort of shenanigans?

What as a start–what defines Unstoppable Medical Fraud Machines? Well, every doctor and healthcare giver across the state knows who they are. Some day, we look forward to actually having a doctor on the IWCC advisory boards who will take steps to identify and stop the abuse. Every veteran Illinois WC claims manager rolls their eyes to hear the names of any of the Unstoppable Medical Fraud providers. When a newbie WC claims handler who is unfamiliar with our strange ways in this state sees a bill from one of them, bingo—you note:

• Most times chiropractors are involved at the beginning or middle of the process;
• Lots of times, claimant lawyers are “secretly” involved in referrals
• The treatment is never-ending;
• These providers’ medium bills are about five-ten-fifty times higher than reputable providers;
• The clinics and doctors are relatively immune to utilization review and IME’s;
• All of it looks like fraud.

Why are chiropractors involved? From our perspective, the role of chiropractors in this form of medical care is in the larger personal injury setting, prone to overtreatment and overbilling. If you find a chiro that doesn’t do so, save their name and number and send them business. We feel chiropractors have a bona fide role in medical care but, in our view, is should not be an endless one. It is a rare chiropractor we see in the Illinois WC process who believes in a beginning, middle and end to what they provide. And sadly, lots of chiropractors seem prone to medical abuse when they are taking advantage of the strange situation in which they are fronting the cost of care to then try to scam or wedge out payment from a carrier and not the patient.

Why are lawyers involved in too-much-treatment and clear instances of medical fraud? Well, Plaintiff lawyers started doing so on the general liability side to increase what are called “special damages.” Then they seem to miss the fact it usually doesn’t help to have overtreatment on the much more structured WC side—claimants don’t get more money for a soft-tissue strain when there are $50K in medical bills; it creates a headache no one wants.

The problem is many of the overtreating doctors look for Plaintiff lawyers to trade clients—you send me folks who will overtreat and I will send you clients. In the wildly competitive world of Plaintiff personal injury work, it is hard to turn down new business for newbie lawyers, regardless of the problems present. The old-timer lawyers know the math and don’t want to represent clients of overtreaters but the process had been going on for years and won’t stop any time soon.

How do we stop Unstoppable Medical Fraud Machines from the perspective of defense WC claims handlers? Well, officially you can use utilization review and independent medical exams and our clunky medical fee schedule to counterattack. All of those techniques have strengths and weaknesses. We assure all of you the current Illinois WC Commission does generally cut the medical bills of overbillers and kudos to them for doing so. The problems our clients note is you have to then fight and litigate to win and stop the abuses.

We were asked by a client whether you can pay-off a claimant to get them away from an overtreater/overbiller? The answer is there is nothing in the Act or Rules that prohibits it and whatever isn’t illegal is therefore legal. This is a new one for us and we would love to hear your thoughts and comments on it.

Our vote is to get administrators and WC advisory boards that have brains, guts, talent and care about business in Illinois—we hope to some day see someone consider implementing a blacklist for overtreaters and overbillers to stop clear and obvious instances of repeated medical abuse. Until we start to get serious about identifying and stopping overbillers and medical fee abuse, it will not stop and it is a major pain at every level of WC claims handling.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Issue:

Under Illinois Worker’s Compensation Law, is bariatric or gastric bypass surgery allowed as a medical expense if it is necessary to treat a work-related injury?

Brief Answer:

Yes. Under Illinois Worker’s Compensation Law, a respondent will be liable to pay “reasonable and necessary” medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to the work injury for the respondent to assume liability for medical expenses.

If a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery or weight loss treatments versus multiple failed attempts to treat the work injury. Resultant weight gain, regardless of causal relation to the work injury must also be considered in determining whether bariatric surgery will be deemed by the commission as “medically and reasonably necessary.”

Discussion:

Under Illinois Worker’s Compensation law, where a petitioner has a pre-existing condition that must first be cured in order to successfully treat a compensable work-related injury, a respondent is liable to pay medical expenses for the preliminary treatment regardless if the pre-existing condition is “related” to the work injury. Timothy Wilson v. Siegles Home & Building, 02 IL. W.C. 18002 (Ill. Indus. Com’n 2008). A petitioner must show through the advisement of a treating physician or through secondary opinions that the preliminary treatment is “reasonable and necessary” and incurred as a “necessary part” of treating the compensable work injury. Wesley J. Whitten v. Central Cartage, 94 IL. W.C. 49516 (Ill. Indus. Com’n 1999); Edwina Ellegood, v. Burwell Oil Serv., 04 IL. W.C. 26563 (Ill. Indus. Com’n 2008). Furthermore, this rule holds true if a compensable work-related injury either exacerbates a pre-existing condition or causes a new condition to form. Timothy Wilson, 02 IL. W.C. 18002.

A pre-existing condition “exacerbated” by a work-related injury, is a “reasonable and necessary” medical expense and is causally related if pre-treatment is necessary to safely cure an underlying work injury. In Wesley J. Whitten v. Central Cartage, the petitioner sustained a compensable work injury after he slipped on ice and fractured his hip. 94 IL. W.C. 49516. The petitioner had a pre-existing, ten-year history of peptic ulcers. Prior to authorized hip surgery, the petitioner’s treating physician found evidence of an actively bleeding ulcer, which was confirmed through an ordered endoscopic exam. The ulcer was first treated to stop the bleeding before the hip surgery proceeded. First, the arbitrator found that the respondent’s unpaid medical bills for the GI treatment were reasonable and necessary medical expenses incurred as a necessary part of conducting hip surgery. Because the petitioner had lost blood from his hip fracture, the arbitrator reasoned that the petitioner could not have had hip surgery without first doing the GI work-up to evaluate the safety of the surgery. Second, the petitioner’s treating physician testified that the petitioner’s pre-existing condition was aggravated by the work-related injury. The arbitrator reasoned from this testimony that all medical treatments, including the GI work-up, were causally related if they were incurred to cure the petitioner’s work injury.

Preliminary treatment of an exacerbated pre-existing condition or newly acquired condition that results from a work injury need not be causally related to become a “reasonable and necessary” medical expense. In Timothy Wilson v. Siegles Home & Building, the petitioner sustained a work-related neck injury. 02 IL. W.C. 18002. The petitioner was obese with a large frame. A post-myelogram CT scan showed multi-level abnormalities, including nerve root and spinal cord compression, which in the treating physician’s opinion required surgery. At the request of the respondent, an IME physician opined that the petitioner did not need surgery. The petitioner’s inactivity from his injury caused him to gain more weight and as a result, developed Diabetes Mellitus. The respondent denied any requested surgery.

After the arbitrator approved a settlement contract, the respondent approved and paid for a cervical anterior disc fusion at multiple levels. Due to the petitioner’s anatomy, the treating physician was unable to successfully perform the surgery, and recommended a second surgery. As a result of the first surgery, the petitioner developed complications, including a deep vein thrombosis, pulmonary emboli, and a pilondial cyst near his coccyx that, because of an infection risk, needed to be surgically removed before the second surgery. The treating physician also recommended pre-surgical treatment including a weight loss plan, nutritional counseling, and injections to control his diabetes. The respondent refused to authorize any of this treatment.

The Commission held based on these facts that the respondent was liable for the costs of all medical treatments recommended by the treating doctor, including the medical expenses for the preliminary treatment of the petitioner’s diabetes and the pilondial cyst “regardless” of whether those conditions were related to the work-injury. The Commission reasoned that “treatment of these conditions was reasonably necessary to cure the Petitioner of the effects of the accidental injury.”

A treating physician “must recommend” that pre-treatment, such as gastric bypass surgery, is a medical necessity prior to treating a work injury. The pre-treatment cannot be a secondarily beneficial to the petitioner. In Edwina Ellegood, v. Burwell Oil Serv., petitioner sustained a work-related knee injury. Post-injury the petitioner had undergone gastric bypass surgery, and as a result had lost one-hundred pounds. 04 IL. W.C. 26563. The respondent disputed liability for payment of the gastric bypass procedure. The arbitrator found that although the petitioner’s leg condition improved as a result of the surgery, the petitioner ultimately failed to prove the procedure was reasonable and necessary. The arbitrator reasoned that the improvement to her leg from the gastric bypass was a secondary benefit. Although evidence from the treating doctor retroactively stated the petitioner benefited, the doctor did not specifically recommend any type of weight loss prior to the gastric bypass.

Although not law, Hennessy and Roach’s defense of respondent, City of Chicago, in Dave Antunez, v. City of Chicago, 06 WC 36891, provides an example of a how to approach a treating doctor’s recommendation for bariatric surgery. Here, a morbidly obese petitioner sustained a back injury during the course of employment. The petitioner’s treating doctor recommended that he undergo a lumbar fusion. It was determined by the physician that the fusion would have a better success rate if the petitioner first underwent gastric bypass surgery in an effort to relieve stress and strain on the treated area. The physician reasoned that, because the petitioner was morbidly obese and had actually gained weight as a result of the immobilizing nature of his injury, other forms of weight loss would be futile. Respondent scheduled two IMEs for second opinions. The IMEs also confirmed that the fusion would be more successful if the petitioner underwent gastric bypass surgery. The respondent conceded and reasoned that the cost of multiple fusion attempts would be greater than the cost of gastric bypass surgery. Otherwise, the respondent would have disputed the surgery.

Although not governing in this jurisdiction, a recent Indiana case awarded gastric bypass surgery to a six-foot, 340 pound petitioner who sustained a back injury in the course of employment. PS2, LLC., v. Childers, 910 N.E.2d 809 (Ind. App. Ct. 2009). As a result of the immobilizing nature of his injury the petitioner started to gain weight. The petitioner’s treating physician, as well as an IME doctor, suggested that he should seriously consider lap-band surgery in order to decrease the risk and increase the success of the prescribed spinal fusion. The Indiana Appellate Court held that claimant’s weight condition, combined with his work-related injury to his back, produced a single injury. Therefore, the claimant was entitled to receive secondary medical treatment, in the form of lap-band surgery. This would help the claimant lose weight, as a precursor to back fusion surgery to treat the work-related back injury. There was no evidence that claimant had a weight condition prior to his injury that impaired his health or required intervention. Furthermore, the claimant’s lower back pain following the injury rendered him nearly immobile, which contributed to weight gain.

Conclusion:

In conclusion, following Illinois Worker’s Compensation law, a respondent will be liable to pay reasonable and necessary medical expenses, if a treating physician, an IME physician, or both agree that it is medically necessary to first cure a pre-existing medical condition, such as obesity, before safe and successful treatment of a compensable work-related injury. The pre-treatment must be specifically recommended by the physician. Furthermore, in most cases with this particular outcome, the petitioner’s pre-existing condition was exacerbated by the work-related injury or a new injury formed. However, preliminary treatment of the pre-existing injury need not be causally related to work-related injury for the respondent to assume liability for medical expenses.

Once again, if a treating physician recommends that the petitioner undergo bariatric surgery prior to receiving treatment for a work-related injury, a client is advised to (1) determine whether the treating doctor specifically recommended the procedure, (2) obtain a second opinion and schedule an IME, (3) conclude that all weight loss measures have been discussed and exhausted, and (4) evaluate the financial implications of one gastric bypass surgery versus multiple failed attempts to treat an underlying condition. Weight gain, whether or not causally related to the work-related injury must also be considered in determining whether bariatric surgery will be deemed “medically and reasonably necessary.”

Post provided by Quinn Brennan – Attorney with Hennessy & Roach.

Back in November of 2009, the Journal of Occupational and Evironmental Medicine published a study that analyzed costs associated with workers’ compensation claims in Illinois.

The study evaluated 19,734 construction injury claims filed with the Illinois Workers’ Compensation Commission between 2000 and 2005.

The researchers looked at various factors like weekly wage, attorney representation, severity of injury, age at time of injury, etc.

They found that the number of claims declined between 2000 and 2005, but the median compensation for an injured worker increased.

The study also found that construction workers filing a claim with attorney representation received $1,210 more in compensation than those representing themselves after controlling for all other variables in the analysis.

“Before throwing in measures of severity — which in this study was percent of disability — attorney costs were about $10,000 per worker,” said Lee Friedman, lead author of the study. “Once we controlled for severity of injury, it dropped to $1,200.”

Friedman stated that this finding is contrary to previous beliefs that legal fees have a dramatic impact on the cost of a workers’ compensation claim.

Click Here to Purchase the Original Article

Claimsmag.com just published an article on their site entitled, “Adjuster Compatibility Testing”.

The article starts by describing scenes from the movies, “Double Indemnity” and “The Incredibles” – both featuring a claims adjuster. The author, Dennis Williams, points out that while the movie “Double Indemnity” helped him understand the importance of a claims adjuster, the movie “The Incredibles” helped him realize that not everyone is suited for the role.

The following are attributes that the article identifies as critical to success as a claims adjuster:

Above-average intelligence and the capability to handle multiple information streams through multiple channels. A natural “multitasker.”

Capability to readily understand the spoken and written word, to understand intent and meaning, and apply in the course of working a file.

Able to work with and understand numbers; readily estimate without use of calculators; ability to look at numbers and infer meaning.

Excels at “thinking on their feet.” This means responding to inputs in real-time with confidence.

Ability to speak effectively and confidently to deliver a message.

Displays empathy in dealing with people, but not at the expense of defending a position.

Has a moderate to high energy level and works at a quick pace.

Relatively assertive and not afraid of confrontation, able to hold ground on a position.

Relatively social in that he or she does not shy away from human interaction. This person, however, does not crave interaction.

Manageable and willing to take direction from supervisors in a structured environment.

Naturally skeptical — trust comes from experience and a “show me” mentality.

Makes decisions based on data and analysis. Not relying on intuition or swayed by emotions.

Not overly accommodating. Lacks somewhat the “need to be liked,” or desire for constant reinforcement.

Able to act and make determinations independently while accepting of feedback and supervision.

Can stay motivated and goal-oriented without requiring an undue amount of oversight.

Ability to work in a fast-paced, stressful environment without degradation of decision-making or work product quality.

What do you think of the list? Anything it’s missing? Anything you disagree with?

You can read the entire article here.