A Resource for Workers' Compensation Professionals in Illinois

2011 Medical fees will increase 1.01%

Section 8.2(a) of the Illinois Workers’ Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

Please note this change will not affect the 76% of charge (POC76) provision. By law, where data to calculate a fee are not available, payment defaults to 76% of charge.

The 2011 rates will be posted as soon as Ingenix calculates them. We will give notice on this news web page and through our ListServe when the rates are available.

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Editor’s Comment: The Illinois State Chamber of Commerce held its 2010 Annual Workers’ Compensation Conference at the Oakbrook Marriott Hotel last Thursday, October 28, 2010.  The conference was very well attended by a broad base of Illinois’ business community who are concerned with the current status of workers’ compensation in this State.

Jay Shattuck, the Executive Director of the Employment Law Counsel for the Chamber, spoke of the comparatively high cost of doing business in Illinois, particularly when measured against our neighboring states. Mr. Shattuck pointed out that Indiana, Missouri, Iowa, and Wisconsin have a significantly lower worker’s compensation benefit cost structure. He also noted many other states have made significant efforts to over-haul their respective workers’ compensation systems in an effort to become more competitive in the business arena and attract new business to their respective states. Mr. Shattuck promoted similar changes for Illinois.

The president and CEO of the Illinois State Chamber of Commerce, Doug Whitley also emphasized the primary goal of the State Chamber is to make Illinois a more attractive state for businesses to set up shop, which will create the jobs so desperately needed. Mr. Whitley outlined the State Chamber’s plan to effectuate such change, including a comprehensive compilation of data on our present system, intended to “build the case” for restructuring of workers’ compensation in Illinois. This plan includes everything from collecting statistical information on insurance costs/premiums to creating a “score card” for Arbitrator and Commissioner decisions for comparative purposes. This data will be used to advocate legislative reform to our Workers’ Compensation Act and also advocate more business friendly appointments to the Chairman and Commissioner positions at the Commission.

Gene Keefe, John Campbell & Arik Hetue of Keefe, Campbell & Associates also provided not one but two different presentations. We highlighted the unusual impact of judicial rulings such as Interstate Scaffolding, ABF Freight System and Cassens Transportation where we felt our judiciary has made unusual controversial rulings that have interpreted the Illinois Workers’ Compensation Act and Rules in an unprecedented and anti-business fashion. We feel the outcome of Interstate Scaffolding actually encourages workers on light duty to act like boors and louts; the ABF Freight System ruling strips out the time-honored defense of the intervening and superseding event with logic we consider strained; and Cassens Transportation renders it impossible to ever change a wage differential award in direct contradiction to the 2005 Amendments to the Illinois Workers’ Compensation Act. If you want a copy of our presentation, send a reply.

The Illinois State Chamber also outlined general suggestions for such legislative changes, the most significant of which include

(1) Changing the standard of compensability in Illinois Workers’ Compensation to require an accident to be the “principal cause” of the underlying condition or disability rather than simply “a cause”

(2) Consideration of AMA Guidelines for ratings of disability once maximum medical improvement is reached and

(3) Enforcing an alcohol and drug standard, making it more difficult for individuals to be awarded benefits when drugs or alcohol are involved in the accidental injury.

This platform presented by Illinois State Chamber serves as the mouthpiece for Illinois business, which has been struggling with spiraling workers’ comp costs since the Blago regime began to wildly inflate benefits at the Commission starting in 2004. That said, it is lost on no one that we stand here on the eve of one of the most important gubernatorial elections in Illinois history with regard to the potential affect on the Workers’ Compensation industry. All industry practitioners will be watching closely to the results to the gubernatorial race, as the outcome will surely dictate the likelihood of change at our Commission.

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.

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Commission Withdraws Emergency Rules Filed on Implants, ASTCs

The Commission repealed emergency rules and withdrew proposed rules on implants and ASTCs on October 28, 2010.

Medical treatment on or after July 6, 2010 and on or before October 28, 2010 should be paid pursuant to the emergency rules.

1.    Reimbursement for a medical implant shall be 25% over the manufacturer’s invoice price less rebates, plus actual and customary shipping costs incurred for the implant.

2.    In the Ambulatory Surgical Treatment Center (ASTC) fee schedule, facilities accredited for surgical treatment by either AAAASF, AAAHC, or JCAHO were specifically deemed to be eligible for the payment of ASTC facility fees.

The Commission will continue to formulate solutions to the perceived problems of accredited facilities and pricing of medical implants.

Arbitrator Hennessy Retires

Arbitrator Hennessy is retiring in December, 2010. We thank Arbitrator Hennessy for his 20 years of service to the Commission.

While Arbitrator Hennessy focuses on writing and issuing any outstanding decisions, his dockets will be covered as follows:

•    Arbitrator Kinnaman will cover the entire Geneva Docket on a permanent basis and it will no longer be a split docket.
•    Arbitrator Fratianni will be assigned indefinitely to cover the Joliet docket

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Illinois Workers’ Compensation Commission
100 W. Randolph, Ste. 8-200
Chicago, IL 60601
(312) 814-6611

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Editor’s comment: We learned last week there is a persistent rumor about the shortly expected resignation of Commissioner Barbara Sherman. Several sources have confirmed it and we understand it is going to happen in the near future. It is our expectation the secret-powers-that-be may be lining up new Commissioners or reinstating existing Commissioners in anticipation of a possible change in power at the top of Illinois state government.

Please understand, as a defense firm, we didn’t agree with Commissioner Sherman’s legal position on many claims or rulings. That said, it doesn’t mean we were right and she was wrong—she made the call on the facts as she saw them and, as an Arbitrator and later Commissioner, she had the mantle. We want our readers to know Ms. Sherman has been a dedicated, honest and devoted public servant for more than a decade at the IWCC. She put up with lots of whining from your editor and lots of other attorneys during oral arguments and motions and always remained professional and calmly asked the right questions.

When Commissioner Sherman first began working as an Arbitrator and later a Commissioner way back in the good old 1990’s, the Commission was something of an “old boy’s network” and wasn’t particularly amenable to its first women hearing officers—in our view, she never backed down and always comported herself as a solid and knowledgeable administrator. She is one of about five attorneys in the Illinois workers’ compensation system who actually knows how to enforce a workers’ compensation subpoena.

We wish her all the best at whatever she does going forward.

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.

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Editor’s comment: One of our readers sent the recent report of the National Association of Social Insurance or NASI. This report provides some of the matrices on interstate and federal WC comparisons.

You may note Illinois, in 2008, the last year in which numbers were available was the third-highest in total payout behind California and New York. We point out the payout is just under $3 billion and only includes dollars flowing through our IWCC.

TTD or temporary total disability is typically the second highest workers compensation benefit, after medical payments. Cash benefits differ according to the duration and severity of the worker’s disability. Temporary total disability benefits are paid when the worker is temporarily precluded from performing the pre-injury job or another job for the employer that the worker could have performed prior to the injury. Most states pay weekly benefits for temporary total disability that replace two-thirds of the worker’s pre-injury wage (tax free), subject to a dollar maximum that varies from state to state. The maximum weekly benefit for Temporary Total Disability (TTD) ranged from $1,366 in Iowa to 398.93 in Mississippi. In comparison to the high of $1,366, you may note Illinois’ maximum TTD benefit rate is about $1,243.00. Nine states had a maximum of $1,000 or more: Connecticut, District of Columbia, Illinois, Iowa, Massachusetts, New Hampshire, Oregon, Vermont and Washington. The eleven states with a maximum of weekly TTD of less than $600 include Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Maine, Mississippi, New York, Oklahoma and South Dakota.

NASI statistics indicate roughly 70 percent of all workers compensation claims are for medical payments only, i.e., there is no compensable claim for lost time from work. Please note such claims do not flow through some state agencies.

For most lost time injuries, workers fully recover, return to work, and benefits end. In some cases, they return to work before they reach maximum medical improvement, usually with restricted duties and lower pay. In those cases, they receive temporary partial disability benefits in most states. Temporary disability benefits are the most common type of cash benefits. They account for 63 percent of cases involving cash benefits and 16 percent of total benefits incurred.

If a worker has very significant impairments that are judged to be permanent after he or she reaches maximum medical improvement, permanent total disability benefits might be paid. These cases are relatively rare. Permanent total disabilities, together with fatalities, account for one percent of all cases that involve cash benefits, and seventeen per cent of total cash benefit payments. As we indicate above, it is a statistical anomaly for the State of Illinois to have 450 total and permanent claims pending.

Permanent partial disability benefits are paid when the worker has physical impairments that, although permanent, do not completely limit the worker’s ability to work. States differ in their methods for determining whether a worker is entitled to permanent partial benefits, the degree of partial disability and the amount of benefits to be paid. In some states, the permanent partial disability benefit begins after maximum medical improvement has been achieved. In some cases permanent disability benefits can simply be the extension of temporary disability benefits until the disabled worker returns to employment.

We caution our reader to remember Illinois doesn’t follow AMA impairment ratings but uses a system similar to stare decisis—we award what other Arbitrators and Commissioners have awarded in past similar claims.

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.

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