WORKERS’ COMPENSATION: UNDERSTANDING THE
SIGNIFICANT 2011 WORKERS’ COMPENSATION ACT
CHANGES AND HOW THEY APPLY
Howard H. AnkinAnkin Law Office LLC
162 West Grand AvenueChicago, Illinois 60654
312.346.8780
RECENT CHANGES
Will County Forest Preserve District v. IWCC et al. 2012 Ill. App. 3d 110077WC (3rd Dist. 2012) Filed February 17, 2012 Shoulder injury is now a Person as a Whole,
NOT AN ARM
Maximum PPD Rates 7/1/10 to 6/30/11 = $669.64 7/1/11 to 6/30/12 = $695.78
“THE BIG 6”
1. Intoxication2. Repetitive Trauma (Carpal
Tunnel)3. Wage Loss – Section 8(d)14. AMA Guidelines5. Utilization Review6. Preferred Provider Programs
1. INTOXICATION DEFENSESection 11 (p. 79)
THE BIG CHANGE NO ONE IS TALKING ABOUTINTOXICATION (Cont.)
Situations: 6 Beers at Lunch/Functional Alcoholic
No Significant Change Saturday Night Smoker
Major Change
WHAT TO DO…INTOXICATION (Cont.)
1. Follow Drug Test Laws (DUI Defense)2. Client gets to say if there is medical
reason3. Rebuttable Presumption
Say what you’ve done and testify at trial.4. To Blow or Not to Blow…
If you do not = Rebuttable presumption that you were intoxicated and that intoxication was the proximate cause of your injury.
2. CARPAL TUNNELSection 8(e)9 (p. 53)
New:- Accident on or after effective
date (6/28/11)- Accident Date:
1. Last Day Worked.2. When Shown Medical to Be
Work Related.3. First Day of Treatment
- Hand = 190 weeks.- 15% max unless shown by clear
and convincing evidence, up to 30%
Old:- Hand = 205 weeks.- Typically 20% awarded, higher
awards possible by preponderance of evidence.
3. WAGE LOSS CLAIMSSection 8(d)1
New 5 years of benefits
or up to age 67, whichever is later.
Old: Benefits for the rest
of life per government life expectancy charts.
TRY THE CASE FORAN ODD-LOT TOTALPERMANENT
4. AMA GUIDELINESSection 8.1b (p. 65)
Question of Permanency 5 Factors Listed
No Single Factor Determines it.
Must have explanation in written order from Arb.
Admissibility? Take the deposition.
Who can prepare reports? “…in all of its branches.”
Big Problem in Small Cases Tip scales for Arb?
Reconcile with case law? Arm = MAW
5. UTILIZATION REVIEWSection 8.7 (p. 72)
UTILIZATION REVIEW (Cont.)
UTILIZATION REVIEW DISCUSSED
Evaluation of healthcare to determine appropriateness of level and quality of care. Treating physician MUST assist.
Employee must show by preponderance of evidence. Consider with all other evidence.
Rebuttable presumption of ZERO penalties when relied upon.
Depositions of UR: Employer must make them available by phone. Employer pays.
6. PREFERRED PROVIDER PROGRAMSection 8.1a (p. 62)
8.1a (Cont.)
Section 8a – EMPLOYEE CHOICE/PANEL OF PHYSICIANS
(p.44)
PPP DISCUSSION 8.1a: Sets up the PPP
Must have adequate doctors available at reasonable times and in reasonable proximity. (Out of state/downstate)
Employer must provide NOTICE. Certified Letter? No Notice = Coverage Disputes?
Only 3 programs currently set up. CorVel, Coventry, HFN
Change in the 2 Doctor Rule: Can opt out of PPP (1st Choice) 2nd opinion DONE
Must opt out “IN WRITING”, “AT ANY TIME.” Panel Doctor sends you to non-panel doctor:
WC pays but can veto the treatment and send you back to panel.- Requires hearing before the Commission (Respondent files)
Choose to go out of network… Respondent cannot unreasonably withhold consent. Can you get back to the panel? Case law will illustrate.
Section 12 IME: Big Company v. Small Companies
THE REST1.1: Conduct (pg. 4)- Arbitrators/Commissions have standards4(a)2: Employee Leasing Company (pg. 10)- Add as additional named insured4(d): Penalties for No Insurance (pg. 12)4(b): Collective Bargaining Pilot Program
(pg. 25)8(a): Employer to Pay Necessary Medical
(pg.44)- Required even if accounts receivable
transferred.
8.2: Medical Fee Schedule- Reduced allowable charges.
THE REST (Cont.)11: No Recovery for Injury Incurred During
Certain Crimes (pg. 78)13 and 14: Arbitrators (pg. 82 + 87)- Licensed to practice law.- Formal training program.- 3 per hearing site.16(b): Gift Ban (pg. 95)- Nothing exceeding $75 per person/day- Class A Misdemeanor18.1: Claims By IWCC Workers (pg. 97)- Need certified independent Arbitrator
COMMON QUESTIONSBorrowing/Loaning Employers:- 1(a)4: Admit or deny within 7 days.Jurisdiction:- 1(b)2: K made in IL, injury, principally located- 1(b)3: Exemptions: Real estate broker, Broker-
salesman, salesman paid by commission only.Burden: Preponderance Of the Evidence: 1(b)3(d)Automatic Coverage:- Section 3 (1-20)Non-Compliance:- 4(d): Employer not entitled to protection of Act
when not maintaining insurance.- Injured Workers’ Benefit Fund – Pro rata share
COMMON QUESTIONS (Cont.)
Illegally Employed Minors:- 5(a) and 7(h): 6 month reject Act. Civil case- 50% increase in compensation under Act.Subrogation:- 5(b): Need consent of employer to waive
lien.Workplace Notice:- Must post printed notices of insurance
(handbook?)Firefighter/EMT/Paramedic:- 6(f): Rebuttable presumption of sicknesses if
worked over 5 years
COMMON QUESTIONS (Cont.)
Death Cases:- 7: Must show dependency, Second Injury
Fund and Rate Adjustment FundCredits on Body Parts:- 8(e)17: deductions from subsequent
injuries.Group Health Insurance:- 8(j): Hold harmlessBalance Billing:- 8.2(e): Prohibited. Collection efforts tolled.Recreational Situations:- 11: Voluntary: no recovery.
COMMON QUESTIONS (Cont.)
IMEs: 12:- Reimbursement/Mileage- Right to medical practitionerSubpoenas:- 16: Rebuttable presumption of accuracy if
certified.19(b) Hearings:- Must have 12 weeks TTD in controversy.NO LIENS:- Section 21.
HELPFUL LINKS
IWCC:- www.iwcc.il.govIllinois Worker’s Compensation Act:- www.iwcc.il.gov/act080811.pdfPreferred Provider Programs:- http://insurance.illinois.gov/Consumer/approvedWCPPPList.pdf