Spinal Issues in the Industrial Population

Space is limited. Reserve your Webinar seat now!

Date:         Wednesday, August 18th, 2010
Time:        11:30 AM – 12:30 PM CDT

CCMC CEU Credits Available

Woodlake Medical Management and Health Systems International, LLC are excited to offer this free educational webinar.

Dr. Wellington Hsu will review common spinal conditions in the industrial population including degenerative disc disease, disc herniations/protrusions/bulges, and spinal stenosis. He will dispel some of the common myths of spine surgery as well as discuss the various treatment options.

An opportunity to ask questions at the end will be available for those interested.

Dr. Hsu is a practicing spine surgeon and assistant professor in the Department of Orthopaedic Surgery and Department of Neurological Surgery at Northwestern University Feinberg School of Medicine in Chicago. He is licensed in both Illinois and Wisconsin and currently is available for IMEs in both states through Woodlake Medical.

Dr. Hsu earned his medical degree from the Vanderbilt University School of Medicine in Nashville, Tennessee, and completed an orthopaedic surgery residency at the University of California-Los Angeles Medical Center.  He then completed his training with a spine surgery fellowship at the University of Wisconsin-Madison. He specializes in degenerative conditions of the spine, trauma and minimally invasive instrumentation.

Dr. Hsu is the director of the Professional Athlete’s Spine Initiative (PASI), which studies clinical outcomes in elite professional athletes after spine surgery.  He has been internationally recognized for his expertise in outcomes of high-performance athletes. Dr. Hsu is currently a consultant for the Chicago Cubs professional baseball team.

You can view Dr. Hsu’s curriculum vitae online at woodlakemedical.com. A sample report is also available upon request by contacting our office.

There is limited capacity for this webinar, so please register today!

Questions can be directed to Chris Rocks (chris@woodlakemedical.com).

Registration Link: https://www1.gotomeeting.com/register/271580481

Sponsors:

Woodlake Medical | In 1994 Woodlake Medical Management was created with one simple concept: To give you quick IME appointments scheduled with a wide variety of doctors, while efficiently delivering well-explained, definitive medical opinions. We are a group of dedicated, friendly people who strive to consistently treat you so well that you look forward to doing business with us.

HSI (Health Systems International) has become a national leader in cost containment and medical management services in the workers’ compensation market.  Services include on-site and telephonic case management, medical bill review and PPO services, pharmacy solutions, Medicare Set-asides, as well as technology application solutions.  With case management nurses located in nearly half of all states, HSI has proven itself to be a growing company in this area.  In terms of bill review services, more and more regional carriers have turned to HSI to identify and control the latest medical billing trends.    Combined with an unsurpassed PPO network, HSI’s savings consistently achieve new heights in terms of savings.

Editor’s comment: In our view the Appellate Court flew straight and true on this dispute. In Atanus v. American Airlines (No. 1-09-2380 June 18, 2010), the Appellate Court, First District affirmed the lower court’s dismissal. Plaintiff was injured while working for Defendant and another company. Plaintiff sued the airline and its employee for tortious interference with prospective business expectancy.

He alleged the airline and its manager made false statements that he committed workers’ compensation fraud to his other employer, an electric company for whom he worked as an engineer. Defendant Airline’s security investigator, upon learning Plaintiff’s work hours at O’Hare overlapped, obtained a copy of the O’Hare gate entry records and provided a copy to electric company. Upon reviewing the records, the electric company boldly terminated him.

The Circuit and later Appellate Court ruled there was no unjustified interference by the airline in providing this copy, which was a proper and accurate business record. The Court majority reasoned it was reasonable one employer would request such a record from the other.

As Plaintiff necessarily alleged transmittal of false information by Defendant airline, he must establish this allegation of false transmittal to survive the summary judgment. As he couldn’t, the claim was dismissed. We applaud the hard work of the folks at American Airlines in not backing down.

We do feel the Illinois judiciary may be getting on the WC-fraud-by-injured-worker bandwagon a little bit. We have also heard of several recent criminal prosecutions across the state. If you need a workers’ compensation fraud poster for your workplace, please send a reply. We appreciate your thoughts and comments.

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.

Independent medical evaluations (IMEs) are an essential element of the workers’ compensation legal practice.  I represent employers and the IME is one of our main tools to use in addressing and attempting to control medical treatment costs, as well as lost time costs.  The Illinois Workers’ Compensation Act allows injured employees two choices of doctors when seeking treatment.  The two-choice rule means that the employee can seek treatment from any doctor he/she likes, and furthermore, any doctor within the chain of referrals from that first doctor is covered under the first choice.  The employee can then move to another doctor and all of that doctor’s referrals as their second choice.  The employee’s ability to choose his/her own physician leads to higher medical costs in workers’ compensation in this state than in other states that allow employers greater control over medical treatment.

It is important to use IMEs wisely because the Illinois Workers’ Compensation Commission typically accords greater weight to the injured worker’s treating physicians’ opinions than the IME doctor’s opinions.  Therefore, in order to overcome that bias, it is very important to use high quality independent medical evaluators.  At times, employers get caught in the trap of using the same conservative physician time after time and the physician’s reputation is quickly compromised at the Commission from the Arbitrator’s perspective.

Therefore, an independent medical evaluator should be selected with an appropriate specialty to the injury at issue in the case, and one who will exercise independent judgment rather than “tell you what you want to hear.”  By using a variety of highly qualified physicians, employers will put themselves in a position to earn credibility at the Commission regarding their independent medical evaluations.

Secondly, it is important to pay attention to the details.  Section 12 of the Act requires you to send transportation expenses to the employee with notice of the independent medical evaluation.  You should also give an injured worker adequate notice of the evaluation, copy his/her attorney, if there is one, and provide clear instructions regarding your expectations related to the appointment.

Thirdly, and perhaps most importantly, it is very important to give the independent medical evaluator medical records related to the employee’s injury and a clear inquiry as to what you are looking for out of the examination.  When drafting a letter to an independent medical evaluator, keep in mind that that letter may become part of the record of the evidence in the case.  Therefore, it is important to approach the letter in an evenhanded and objective manner.  One good way to test this is to review your letter and ask yourself is there anything in the letter you wouldn’t want read out in public in court in front of you.  If so, re-write your letter.

Next, it can also be very helpful to talk to independent medical evaluators or ask follow-up questions regarding your issues.  Sometimes independent medical evaluators will have research articles or other material that will support their opinions and can be very persuasive at trial.

Finally, once you obtain your IME report, read it carefully and follow up.  I typically immediately send it to my opponent so that I do not run afoul of the 48-hour rule.  That rule requires you to tender any IME report that you want to introduce into evidence to the other side at least 48 hours before the start of the hearing.  IME reports are hearsay documents, so you may need to take your doctor’s deposition if a hearsay objection is raised.  That leads to another good point, which is that ideally your IME physician will be able to provide clear convincing testimony if necessary and be willing to prepare for his deposition.

These are a few thoughts from the defense perspective.

About the Author:

Mr. Christopher J. Gibbons is a Shareholder with the Chicago Law Firm Nyhan, Bambrick, Kinzie & Lowry, P.C., Executive Secretary of the Illinois Self-Insurers’ Association and Chair of the Illinois Employer Workers’ Compensation Coalition (Tuesday Working Group). Mr. Gibbons received his Bachelor of Arts from the University of Wisconsin in 1987 and his Juris Doctorate in 1992 from Loyola University Chicago School of Law.  He is admitted to practice before the United States Supreme Court, the Supreme Court of Illinois, all Illinois state courts, and the U.S. District Court, Northern District of Illinois.   His areas of specialty are trial and appellate practice in the workers’ compensation and employer liability law. Mr. Gibbons’ clients include Advocate Health Care, Caterpillar, Inc., Provena Health Care, Commonwealth Edison/Exelon and Exxon- Mobil. He can be reached at (312) 201-0829 or cgibbons@nbkllaw.com.

Setting up a proper workstation is vital for any individual who spends time working a desk or computer.  Many people often do not take the time to take a step back and look at the positions they are in for hours at a time.  Making sure your workstation is proper is as important if not more important than choosing a proper mattress since more time is spent at work than sleeping. Simple fixes or adjustments can be made to a workstation, which will help eliminate minor aches and pains.

Many studies have found a significant association between extreme static postures, which are maintained for greater than four hours, and neck musculo-skeletal disorders. [1]  The workstation should be individually designed to fit the workers needs and body.  There are a few simple elements that are looked at when setting up an ergonomically correct workstation.

1. The top of the monitor should be at or just below eye level
2. The Head and neck balanced and in line with torso
3. Shoulders should be relaxed
4. Elbows close to the body and supported
5. Lower back should be supported
6. Wrists and hands inline with forearms
7. Adequate room for keyboard and mouse
8. Feet flat on the floor

The above 8 guidelines are from OHSA and further information and illustrations can be found at www.osha.gov.

By following these simple guidelines, many aches and pains may be prevented and workers may be able to work longer hours with less stress to their neck and back.

About the Author:

Maggie Noon is a Physical Therapist with Doctors of Physical Therapy. She graduated from Northwestern University Physical Therapy & Human Movement Sciences. While studying at Northwestern, Maggie gained clinical experience in outpatient orthopedics, acute care setting, and pediatrics. Doctors of Physical Therapy is a physical therapist owned and operated company. with the main goal to consistently help patients achieve faster, long term relief. They can be reached by calling 1-800-974-4DPT or by visiting www.doctorsofphysicaltherapy.com

[1] A Critical Review of Epidemiologic Evidence for Work-Related Musculoskeletal Disroders of the Neck, Upper Extremity and Low Back. National Institute of Occupational Safety and Health. July 1997 No. 97-141

On July 6, 2010, emergency rules took effect that change the reimbursement method for implants and add accredited Ambulatory Surgical Care Facilities
(ASCFs) to the ASTC fee schedule.  The Commission filed the emergency rules with the Illinois Secretary of State for publication in the Illinois
Register. Simultaneously, the Commission filed the same language to go through the normal rule-making process.

The amendment makes two changes to Section 7110.90:

1. It changes the reimbursement method for medical implants from 65% of normal charge to 25% over the manufacturer’s invoice price less rebates,
plus actual and customary shipping costs incurred for the implant.

2. It provides that Ambulatory Surgical Care Facilities (ASCFs) accredited by AAAASF, JCAHO, AAAHC are eligible for reimbursement under the ASTC fee
schedule. Previously, the rule said the ASTC fee schedule applied only to Ambulatory Surgical Treatment Centers licensed by the Illinois Department of Public Health.

Treatment on or after 7/6/10 should be paid according to these new rules.

Comments about the amendment should be submitted in writing by August 30 to:

Darrell Widen
Assistant General Counsel
Illinois Workers¹ Compensation Commission
8-281 JRTC
100 W. Randolph St.
Chicago, IL 60601
312-814-8770
darrell.widen@illinois.gov

To view the emergency rules, go HERE.

Editor’s comment: One thing we are trying to tell the voices of WC reform in this state is our commitment to all of our readers that we don’t have to focus all our money and attention on changing the Act. The problem we have is the way the Act is interpreted. The paradigm of odd interpretation of wildly high and out-of-control workers’ compensation benefits in Illinois is Section 8(d-1) that provides lottery-level-winning benefits to individuals with non-life-changing conditions such as sore elbows. This is one such case. We want our readers to understand wage loss “differential” benefits are supposed to make up the difference between what an injured worker was making and what he/she could be making in a new job—if you don’t have a new job, there is no “differential” to make up. Regardless of that fact, the current Commission and reviewing courts may not seem to mind and may be willing to award millions in a fashion a more conservative Commission wouldn’t. Let’s see how it currently works.

In Copperweld Tubing Products v. Illinois Workers’ Compensation Commission, (No. 1-09-1422WC June 22, 2010), the Appellate Court considered a claim in which Claimant was employed as a mill operator. On November 28, 2001 Claimant was pulling a spacer which fell and strained his left elbow. Claimant was diagnosed with left lateral epicondylitis and underwent an anterior submuscular transposition of his left ulnar nerve on September 20, 2002 and a second submuscular transposition of the left nerve in December 2002. He later had a third surgery. Despite the fact claimant only had one injury to one elbow, following claimant’s surgeries an FCE was performed which revealed claimant possessed the ability to work at the light to medium physical demand level.

As we have told our readers on numerous occasions, an FCE resulting in permanent work restriction provides the “golden diagnosis” that leads to a claim for lifetime wage loss benefits under Section 8(d-1). As our law requires to best set up such a claim, the injured worker clowned around in vocational rehabilitation and didn’t find the jobs recommended. At one point, the vocational rehabilitation counsel for the employer opined he could locate work in a range between $8-12 per hour. Almost two years after being released from care, claimant got a job on his own as a security guard making $8 per hour. He quit six months later and has never worked again. This happened in 2006.

Why would a guy who was making that much money grab a job as a security guard at that low rate of pay? We have called this Section 8(d-1) strategy Bad-Job-Right-Away for about twenty years. You don’t see these sorts of shenanigans in other states. The idea is to document the ability to work but set the rate of pay at the lowest possible amount to concomitantly insure the highest possible wage loss differential benefit.

What happened then was the creation of a problem with the claim—the Petitioner side might have gotten a little too aggressive. For comparison purposes, they used another employee who made $78,000 per year. The problem arose when some of the co-worker’s wages were from mandatory overtime but some of his wages were from overtime that he bid for. All of it delayed the claim while the parties appealed it all the way to the Appellate Court which still hasn’t resolved the claim four years after the security job ended. While we aren’t completely certain, we are confident claimant still has refused to return to any job and vocational counseling probably ended four or more years ago.

Where is the claim at right now? Well the Commission previously awarded this claimant $534.16 per week for wage loss differential. If that amount stands up to further scrutiny, he will be paid $27,776.32 on a tax-free basis for life. And, in this state, he is entitled to the benefits and he can still work even in the same pre-injury job or at a job that pays double or triple what he was making—this all comes from the odd ruling in Cassens Transport. Please note the current decision in Copperweld Tubing Products above doesn’t state Claimant’s age but if he lives forty years, he will receive a cool $1,111,052.80 without having to pay state or federal taxes. He will receive all of that money for one injury to one elbow. You may note it would be the equivalent of about 400% loss of use of the arm. There is no state in the United States that provides such largesse.

The Appellate Court sent it all back to the Commission for reconsideration of the award without the mandatory overtime. When the Commission gets it back, they will now be considering a record in which claimant has been out of the work force and appears to have retired from all work and withdrawn from the workforce. If someone with the slightest defense focus were to look at such facts, it is possible they could reasonably limit the award to specific loss of use of the arm and maybe something under Section 8(d-2) for “loss of trade.” Again, in Illinois, with respect to our current Commissioners, we don’t think the administrative hearing officers will care. It is our view no one will have any problem with awarding wage “differential” benefits to someone who has had no wages for more than four years and is obviously participating in litigation gaming.

So you either have to change the thinkers or change the rule. With respect to the current Commission, it may be dramatically easier to change the thinkers. Either way, from the defense side of the bar, we have no problem awarding wage loss differential benefits to make up actual or even projected “lost wages.” It is our view it is outrageous, business-busting and anti-job creation to force Illinois employers to award potentially seven-figure lifetime benefits in the fashion awarded in this claim.

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.

One of the most important parts of the Independent Medical Evaluation (IME) process is selecting the right IME physician. On the surface, this does not appear to be a difficult task. Most will simply pick an appropriate specialty, ensure a doctor is board certified, and then narrow their choice by geography. A claims adjuster, case manager, or attorney will incorporate any feedback they’ve gotten from others on the doctor [their perceived reputation] into their decision making process.

Unfortunately, this standard approach does not address many components of the IME process that should impact your decision. Relying solely on the reputation of a doctor does not translate into quick scheduling, quick turnaround of the report, or a medical opinion expressed in a way that meets the requirements of a defense attorney, arbitrator, or commissioner.

For many workers’ compensation claims, picking the right specialty is relatively straightforward, as is limiting the search based on geography. This article will address the more overlooked steps of the IME doctor selection process – after specialty and geography have been identified.

Referrals

While past performance is no guarantee of future performance, obtaining referrals is an essential part of the process. Speaking to others about their experience with a doctor can provide insight into the quality of both the medical opinion provided by a specific physician as well as how efficiently that opinion was obtained. Understand that there is very rarely a consensus on any individual physician, so soliciting referrals from multiple sources is recommended. Look to your colleagues, attorneys, physicians, as well as IME vendors for insight and suggestions.

Also, please understand that each adjuster, case manager, and attorney tends to have different criteria they use to evaluate an IME doctor. Simply because a colleague recommends a particular doctor does not mean that doctor will meet your criteria. As a result, there are several additional steps you must take to ensure the right selection.

Initial Contact

Once several options have been identified, those doctors should be contacted to solicit additional information. It is important to determine:

1)   What experience does the doctor have with IMEs? Do they understand the Illinois Workers’ Compensation system?

2)   What do they charge for IMEs? Do they require prepayment of that fee? What if the exam is cancelled or the claimant does not show? What if an addendum needs to be requested or deposition scheduled?

3)   How far out do they typically schedule?

4)   How far in advance do they require the medical records? What happens if they do not receive them in time? Will they cancel the exam [with a fee] or address the records in an addendum?

5)   Will they issue a quick report within 24-hours of the exam?

6)   How long after the exam do they dictate their report? How long does it take to have it transcribed, reviewed, signed, and sent out?

7)   Does the doctor have any upcoming vacations or time out of the office scheduled that could impact the time it takes to issue their report?

While most are primarily interested in the quality of both the IME physician and his/her medical opinions – cost does play an important role for many. Selecting an IME physician based solely on the flat fee he/she charges for an IME without considering all of these other factors is short sighted as they can all have a dramatic impact on the overall cost of the IME.

Credentials

A physician’s curriculum vitae (CV) can provide some insight into how appropriate a specific IME doctor is for a case. Keeping in mind that a physician’s background can play an important role in litigated claims, reviewing their educational background, additional training, and areas of interest [via published work and speaking engagements] is vital.

While it may be rare to come across a physician that does not have an active medical license, it is worth the few seconds it takes to request a copy from his/her office or to search for it online.

Another often-overlooked step is requesting proof of a doctor’s liability insurance. This also helps to shed light on whether a doctor is actively practicing medicine. A doctor that is retired [from seeing patients] and who derives the bulk of their income from medical-legal work may not carry malpractice insurance. Requesting a doctor’s proof of liability insurance will help to indentify who those doctors are.

Sample Report

Doctors do not receive formal training on IMEs. The format and quality of reports, as a result, vary a great deal. A physician may have an excellent reputation. He/she may be a skilled surgeon. They may be an excellent communicator and very knowledgeable. However, none of that may translate properly into their IME reports. The only way to truly evaluate the quality of their IME reports is to request and review sample reports.

In reviewing the sample, it’s important to note:

1)   Is the report definitive? Is the language the doctor used strong? Or does it leave you wondering how confident the doctor was in their opinion?

2)   Is the report medically sound? If you have the medical background necessary to evaluate the report – does what the doctor writes make sense?

3)   Is the report thorough and well explained? Are all the questions answered adequately? Are the opinions well supported? Could someone with little or no medical background read the report and understand it? Does it leave you asking more questions?

4)   Are there unnecessary typos and grammatical errors? Does it appear that the report may not have been reviewed closely prior to being finalized?

Interview

If possible, the doctor should also be interviewed. In person is preferred, however, over the phone is acceptable. This interview will provide a great deal of insight. You will get a feel for how they might depose should the case go that direction. Their willingness to speak to you will highlight how responsive and easy to work with they are (or aren’t). You can also use this as an opportunity to present them with a scenario to gauge their understanding of Illinois Workers’ Compensation as well as determine their approach to workers’ compensation injuries (both from treating and IME standpoint).

While this process might seem time consuming, it is essential when working with an IME doctor you have limited experience [or no experience] working with. You may be unable to complete each part of the process, based on the physician’s willingness to participate, however, attempting to gather all of this information will dramatically reduce the risk and cost associated with the IME.

If time constraints make this process impossible, there are service providers that can assist you. You must first determine what value acquiring higher quality opinions from better doctors more quickly means for your employer or client. If you need any assistance performing an audit of your IME process to determine what savings may be available when implementing this process, please contact Chris Rocks at Woodlake Medical.

About the Author

Chris Rocks currently oversees physician recruiting, business development, and client service in Illinois, Missouri, and Iowa for Woodlake Medical.  Prior to joining Woodlake, Chris spent 12 years in the technology and financial services sectors in an executive level capacity with a focus on sales, marketing, and client service.  Chris’s mission is to partner with physicians and physicians’ staffs to deliver highly efficient IME services that result in definitive, medically sound IME reports.

Editor’s comment: We are happy to report our view the Appellate Court got this one right! Please remember it may still be appealed to a very liberal Supreme Court—watch this space for ongoing news.

By way of history, in 2000, a ruling from the Appellate Court in Clayton v. Ingalls Memorial Hospital has created confusion for the last decade. In Clayton, the Court ruled a witness who had to bring ‘medical records’ to court was entitled to a $20 witness fee and mileage. The ruling confusingly states the witness is not entitled to copying costs to bring ‘medical records’ to court. Numerous WC attorneys, on both sides of the bar, seized upon this ruling to create an “urban legend”—if a medical provider didn’t want to come to court with records, you would receive only $20 and provide unlimited copies of medical records!!

The logical glitch that was promulgated by Clayton proponents is the ruling obfuscates the difference between original medical records and copies of medical records. Please note Illinois physicians, hospitals and healthcare givers are required by law to create and store original medical records for all care. Disclosure of private health information in original medical records is guided by HIPAA and has to be followed; inappropriate disclosure may violate federal law. Health care givers cannot allow original medical records to be brought to a hearing and casually left lying around or to be kept for an indefinite period by the patient, their counsel, the employer or the Arbitrator. While our law contemplates original medical records can be inspected by an Arbitrator—to follow state and federal law, the keeper of the original records has to then bring them back for safe and secure storage. What followed the Clayton ruling was form correspondence from numerous respondent and petitioner’s WC firms across Illinois who would send a subpoena with a $20 check to a healthcare giver or hospital and tell them they were forced to come to court with the ‘records’ or avoid a court appearance by sending unlimited copies of ‘records’ for the $20. We consider it preposterous for an Illinois hospital to have to make copies of 500, 1,000 or 10,000 pages of original medical records for only $20. We received numerous complaints and inquiries from health care providers across Illinois protesting the concept. Dr. David Fletcher at Safeworks Illinois had the guts and brains to say no and be willing to put the money on the line and fight it. Dr. Fletcher estimates he was losing $20,000-30,000 a year in costs to process record copying requests in excess of the sums of $20 checks issued with subpoenas that misstated the Clayton ruling. Dr. Fletcher hired KC&A to represent him and Safeworks in the challenging this mischaracterization of the Clayton ruling.

We assure all of our readers the attorneys who made this request and similar requests did not want anyone to come to court with original medical records for inspection by the Arbitrator to then have the original medical records brought back—the claimant attorneys all want effectively free copies of the original medical records that can be used to prepare for hearing and when the hearing is convened, submitted into evidence and made part of the record. Remember the vast majority of Illinois WC claims settle year-in and year-out; the records need to be in the attorneys’ hands to facilitate the process. We have written and called numerous Plaintiff/Petitioner law firms to advise they were misleading the public to make the claim that a witness fee is a payment for copying costs. We filed not one but two requests with the Illinois Workers’ Compensation Commission asking them to tell attorneys to stop modifying the Commission’s official subpoena form to mislead folks by asserting they were entitled to unlimited copies of medical records for a $20 witness fee. The Commission did what they usually do with such requests—nada. We assure everyone in the industry on both sides there is no provision in Illinois workers’ compensation law or rules that set a medical records copying charge—the Act was drafted long prior to the invention and promulgation of photocopying machines and it has never been updated.

In two recently published decisions rendered by the Appellate Court, Fourth District, Holtkamp Trucking v. David Fletcher, Gen No. 4-09-0587 and Safeworks IL Occupational et al. v. Julia Wills, Gen No. 4-09-0827, the Appellate Court clarified exactly what the Commission can and cannot do under the Act when it comes to subpoena power. Prior to these two decisions, Clayton confirmed the unassailable position that if you serve a subpoena and pay a witness fee and mileage, the witness has to bring original medical records to the Commission for inspection by the Arbitrator at the hearing. It also paradoxically says you don’t have to pay copying costs for a witness to bring original medical records to the Commission for inspection by the Arbitrator at the hearing. We here at KC&A have always agreed with that position and feel it accurately states the law of the land in our fair state. What numerous lawyers have “mis-stated” about Clayton is their unusual requirement the witness, having been served a witness fee only, make unlimited copies of the original medical records at their own cost and forward them to the person sending the subpoena. Neither Illinois law nor the Clayton ruling says that. In both of the underlying claims in Holtkamp v. Fletcher and Safeworks v. Wills, a medical provider was served with a subpoena and we agreed to bring original medical records but would not create or bring copies. When counsels learned we refused to make and deliver photocopies at our expense, the Arbitrators ordered us to do so and an application was filed in the respective Circuit Court to enforce the subpoena.

In Holtkamp v. Fletcher, the Circuit Court held Dr. Fletcher and Safeworks Illinois in contempt for failure to provide the records, ordered the medical provider to furnish photocopies and ordered the requesting party to pay for the copies at 15 cents per page. Where they got the .15 cents per page number, we cannot say—no evidence was taken or presented on the issue and with respect to the Court, we think the judge simply made it up as his view of a fair number. In Safeworks v. Wills, the Circuit Court ruled the medical provider was in contempt for not presenting the records, and ordered us to turn over unlimited photocopies of the original medical records at our cost. The two decisions rendered by the Appellate Court on appeal were well thought out and confirmed our position on behalf of Dr. Fletcher and Safeworks. The Appellate Court confirmed it was not overruling Clayton, and in fact the decisions were entirely consistent with that ruling. The Court stated the Commission does not have the power to force a medical provider to create and turn over photocopies for free. The Court stated in Holtkamp “The subpoena might just as well have commanded [the medical provider] to mail a stethoscope to plaintiff’s attorney, because the medical records were [the medical provider’s] property, the same as a stethoscope. The Commission cannot confiscate [the medical provider’s] property by commanding [them] to mail it to plaintiff’s attorney, as the Commission did in its subpoena in this case.”

The Court went on in Holtkamp to analyze Section 8(a) of the Act which states “every physician tendering treatment shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer.” The Court held furnishing reports meant furnishing for inspection, and not giving them away – they also noted the requirement of permitting the records to be copied would be superfluous, a finding courts are loathe to assign to portions of a statute. In both cases, the Court ruled the only thing the Commission was able to enforce, as a power it was given under the Act, was to compel a provider to appear with original documents in hand. In both cases, the Appellate Court notes there is a provision of Illinois law that deals with reimbursement for copying charges, and that is 735 ILCS 5/8-2001(d) (West 2008). The Court stated it well in Safeworks v. Wills: “…Section 16 of the Workers’ Compensation Act did not require the subpoenaing party to pay any per-page copy fees or retrieval fees. That is true. Because section 16 does not require the making of any copies, section 16 does not require any copy fees. To the extent, however, that the law does require [the provider] to copy records, the law entitles [the provider] to reimbursement.”

The Court summed up situation perfectly in the Holtkamp decision:

No doubt, most doctors would conclude that they have better things to do than sit in a workers’ compensation hearing all day while the arbitrator and parties go through the original medical records page by page. By the same token, most doctors probably think they have better things to do than operate a photocopying center as a side business that does not even pay for itself…

One would expect that most employers would manage to reach an agreement with doctors to arrange for the duplication and mailing of medical records in return for a reasonable fee, that is, a fee over and above the standard witness fee of $20, which, one may reasonably assume, does not even come close to paying for the [costs associated therewith]…

Perhaps the Commission should consider promulgating a rule whereby a subpoena issued by the Commission could offer an alternative to appearing at the hearing with the original records in hand. The alternative, for example, might be photocopying the records at a certain price per page, which the Commission could specify, and mailing the photocopied records by a certain date. Or perhaps a simpler solution would be to require the employee to sign an authorization for his or her medical records to be released to the employer. Then the employer could avail itself of section 8-2001. We assume that in practice, most medical providers do photocopy records for purposes of workers compensations. While it is likely time for the rules of workers’ compensation to correspond more closely to the modern practice of litigation, that is for the Commission to determine.

While we again feel the Court is again rehashing the weird thought of busy physicians being forced to sit in court with their original records, we feel they got it mostly right—we do foresee instances in which the medical recordkeepers for Illinois doctors and hospitals may have to bring original records to hearings or try to work out an agreement to copy records at a mutually agreed cost. We also point out to all Illinois doctors and hospitals, the vast majority of Illinois medical records subpoenas are defective the minute you see them because attorneys always mail them in derogation of the rules which requires them to be personally served on you.

As such, in practice, the Court has set the landscape as follows:

• If medical record-keeping staff is subpoenaed, they will have to bring the original medical records to the hearing and then take them back after inspection;
• The requesting party can pay for photocopies of original medical records per State Comptroller Hynes’ published rates;
• We can all agree like grown-ups to any other path to get records copied at any reasonable cost; so the sole cost of photocopying and mailing copies isn’t dumped on doctors and hospitals;
• Press for doctors and hospitals to move to electronic records that are much easier to handle.

In our view, in workers’ compensation claims, hospital and medical caregivers will now be able to easily price and recover the reasonable State Comptroller’s rates when photocopying of medical records is required. Until, that is, the Commission changes the rules or posts their own rate for copying charges, which they could easily do. It would certainly be a “shake up” for the new administrations!

For the current State Comptroller’s rates, see below for easy reference:

Record Copy Fees for 2010

The Illinois Comptroller has announced the annual inflation adjustment to the maximum fees which may be charged for paper copies of patient medical records. The following are the new maximum amounts for paper record copies, effective January 20, 2010:

Fee for Paper Copies   2010

• Handling charge                    $24.44
• Copy pages 1 through 25         $0.92
• Copy pages 26 through 50       $0.61
• Copy pages in excess of 50     $0.31
• Copy made from microfiche or microfilm $1.53

Source: http://www.ioc.state.il.us/office/fees.cfm

Please don’t act unprofessional and/or “threaten” Doctor Fletcher or anyone else about this issue

We are advised numerous claimant firms may now be distressed by having to pay these moderately higher medical record copying costs as they may no longer be able to get unlimited copies of medical records for $20. We urge them to get over it. We don’t feel it was ever appropriate for anyone to misstate the law or rules as many people were doing in Clayton. We point out claimant attorneys who order photocopies of medical records always recover those costs either at settlement or when they receive payment of an award. We also strongly suggest that anyone on either side who objects to the rates posted by the State Comptroller should complain about it to the appropriate authorities. We are also confident you may be able to contact numerous copy services and obtain copies at rates that are lower than the State Comptroller’s rates. We also invite anyone to contact the great folks at Safeworks Illinois to seek a volume photocopying discount at fair values. Finally, we were advised some folks feel doctors and hospitals should have to pay effectively all medical record photocopying costs because they are wildly profitable—if you feel that way, you are being childish because many doctors and hospitals, particularly in central and southern Illinois are hanging by a thread in this rotten economy.

We are advising all of our hospital, physician, nursing and other clients, if you get another form letter asking you for unlimited copies of original medical records for $20, you should send them pricing under the State Comptroller’s guidelines along with the links to these two rulings. If you need the web link to the rulings, send a reply.

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.

On June 24th, I hosted a webinar with Gene Keefe of Keefe, Campbell & Associates.

Anyone who regularly requests Independent Medical Evaluations (IMEs) for workers’ compensation claims in Illinois are strongly encouraged to watch the presentation. Gene does an excellent job of discussing the importance of the information you provide the doctor, what information you need to always supply, what questions to ask, and how to ask them. The most valuable part of the presentation, however, is found towards the end during the Q&A. A lot of great questions were asked by those that participated.

Some of the feedback we received:

“Excellent and very relevant!”

“This was very informative. there were questions that i was not aware that we could ask our ime physicians but will ask them now.”

“Thoroughly enjoyed the information and answer to questions”

If you would like a copy of the presentation and/or sample cover letters you can reference, please contact me.

Below you will find a recording of that webinar.

(To increase the size of the screen, you’ll need to click on the icon in the lower right hand corner of the video player.)

On June 10th, I hosted a webinar with Dr. Anand Vora with Illinois Bone and Joint Institute.

Employers, Risk Managers, Case Managers, Attorneys, and Claims Adjusters who regularly encounter workers’ compensation claims involving the foot and ankle are strongly encouraged to watch the presentation. Dr. Vora does an excellent job covering many of the most common acute and cumulative trauma injuries/conditions you’ll encounter. He discusses diagnosis, treatment, causation, complications, and what the recent literature supports.

Some of the feedback we received:

“Excellent presentation, one of the best i’ve attended!”

“Excellent topic choice and presentation for both layman and clinical staff, would have be appropriate for both. thank-you.”

“Found the information to be very helpful to utilize in the day to day claim file management”

“I thought this has been one of the best outservices/webinar that i have been to – to date. there is only one other conference that i had attended in all my years of nursing that would rank as high as this one. i thought dr. vora’s presentation was excellent, engaging and informational. i would highly recommend this webinar and i would attend another conference of his live or via webinar. thank you for a wonderful presentation!!”

“The webinar helped me to understand ankle injuries more clearly from a disability standpoint.”

Specifically, in the presentation Dr. Vora covers:

• Acute Trauma
  • Crush injuries of the foot
  • Ankle fractures
  • Talus fractures
  • Calcaneus fractures
  • Subtalar Arthrodesis
  • Midfoot tarsometatarsal fracture/injury
• Cumulative Industrial Trauma of the foot and ankle
  • Hallux Valgus (The Bunion Deformity)
  • Morton’s Neuroma
  • Tarsal Tunnel Syndrome
  • Adult Acquired Flatfoot
  • Osteoarthritis

Below you will find a recording of that webinar. (To increase the size of the screen, you’ll need to click on the icon  in the lower right hand corner of the video player.)

If you have any questions for Dr. Vora or Woodlake Medical, please feel free to contact us.