Will workers’ compensation MSA guidelines extend to personal injury cases?

As we previously reported, a CMS policy for liability Medicare set-aside (LMSA) review appears to be imminent.  The current state of confusion is depicted in a recent case involving CMS. In Silva v. Burwell, the plaintiff was injured as a result of a medical malpractice incident, after which he sustained permanent and extensive brain damage as well as physical limitations.  Plaintiff sued in state court against the hospital and the treating physicians.  The parties settled the case by agreement in 2015.  Medicare paid some of plaintiff’s medical expenses incurred in connection with the incident, so Medicare had a claim for payment under the Medicare Secondary Payer Act (MSP).  Plaintiff reimbursed Medicare for the expenses it paid.

The defendants claimed that Plaintiff was obligated to create an MSA from the settlement proceeds of the case for future medical expenses. This assertion was rooted in concern that Medicare may go after the hospital defendants for future medical expenses.  The defendants pointed to CMS’ regulations regarding the allocation of funds for future medical treatment in workers’ compensation cases to support their position that a Liability Medicare Set Aside (LMSA) should be created for the instant personal injury matter.

Mr. Silva asserted that that there was no legal support for the Medicare to request a set-aside because the CMS guidelines related to future medical treatment for workers’ compensation claims do not extend to personal injury settlements. Plaintiff went a step further and requested that CMS state its position regarding whether funds must be set aside from settlement of a personal injury claim to cover unknown, unspecific future medical expenses.  CMS neither responded nor took a position regarding (1) the legal basis of their claim for repayment or future medical care (2) whether a set aside was required with respect to the Plaintiff’s medical care.

The hospital defendants agreed to release the money in trust to the plaintiff’s trustee for his health and welfare if the plaintiff obtained a federal order containing a finding that no federal law or CMS regulation required the creation of a Medicare set-aside for his personal injury settlement. It was also determined that during the state court approval of the settlement, a certain amount of the settlement would be kept in trust to meet any Medicare set-aside needs while plaintiffs pursue the instant federal court action.

Plaintiff Silva subsequently filed suit under the Declaratory Judgment Act, which is the federal question statute, the Mandamus Act and the Medicare Secondary Payer Act (MSP) against the defendants, seeking declaration that no set-aside was required to pay for future medical expenses in the state court settlement. In addition, the plaintiff sought confirmation that defendant CMS may not in the future decrease or refuse to pay for medical bills the plaintiff may incur or otherwise penalize the plaintiff or his trust. Lastly, the plaintiff sought confirmation that MSA’s are not required under the law for personal injury or medical malpractice damages.

Defendant CMS filed a motion to dismiss for lack of subject matter jurisdiction based on the argument that there is no justiciable case or controversy because (1) the Secretary of the Department of Health and Human Services had no duty under the law to take a position on a controversy, (2) the United States is immune from suit and, (3) the plaintiff failed to exhaust his administrative remedies under the Medicare Act.

The Court in this case noted that Congress’ intention in enacting the MSP was to reduce the increasing cost Medicare incurs by making the government a secondary payer of the medical insurance coverage when a beneficiary has other sources of primary insurance coverage. The MSP also provides the government a cause of action in reimbursement to recover conditional health care payments from primary plans. Lastly, the court noted that a tortfeasor’s liability insurance company may constitute a primary plan under the MSP, triggering Medicare’s right to reimbursement when it pays out settlement proceeds to a Medicare beneficiary arising from a personal injury claim. This includes reimbursement for medical expenses incurred from the incident and paid by Medicare. The Court also observed how the Medicare set-aside is administered in workers compensation claims and the statutory and case law basis for same. The Court emphasized however, that Medicare had not established the same administrative process for liability in personal injury claims that was in place for worker’s compensation claims.

The Court applied Federal Rule of Civil Procedure 12b)(1) to evaluate the motion to dismiss for lack of subject matter jurisdiction. The approach to this case included acceptance of the complaint’s factual allegations as true. The Court explained that to establish standing, a plaintiff must show (1) an injury-in-fact that is concrete and particularized as well as actual or imminent, (2) a causal relationship between the injury and the challenged conduct; and (3) likelihood that the injury would be redressed by a favorable decision. Contingent liability can also constitute an injury in fact so long as there is an actual or imminent present impact.

The Court distinguished the defendants’ position in the instant matter from the party in Protocols, LLC V. Leavitt, 549 F. 3d 1294, 1298 (10th Circ. 2008), by highlighting that the defendant CMS in the instant matter had not taken any action to indicate they were interpreting the Medicare secondary payer act to require MSAs in a non-Worker’s Compensation personal injury case. Further, Plaintiff Silva had not shown that CMS sought to recover funds not placed in an MSA or other similar personal injury settlements. The Court therefore concluded that the plaintiff did not show the federal defendants were likely to seek reimbursement from either the plaintiff or the hospital defendants. The Court explained that the plaintiff did not convince the Court that the federal defendants had a duty or obligation to respond to plaintiff’s request for determination of whether an MSA must be created in his case. The Court reasoned that there was no law or regulation in place that required CMS to decide whether plaintiff was required to create an MSA for his personal injury settlement. The Court also noted that the defendants in action did not make the case ripe for consideration.

Interestingly, the Court noted concern for the potential impact of requiring personal injury settlements distress specifically apportioned to each or medical treatment expenses. The Court stated that this requirement would be burdensome to the settlement process and in turn, discourage personal injury settlements. An obvious concern which also applies to the WC arena. The Court acknowledged that the uncertainty created by CMS’s repeated failure to clarify its position or requiring MSAs in personal injury settlements also proved burdensome to the settlement process. Despite this burden, the Court stated that standing is a jurisdictional requirement, and plaintiff Silva had not met his burden to establish a justiciable controversy ripe for review. The Court granted defendant’s motion and memorandum in support of same and dismissed the case for lack of subject matter jurisdiction.

In so holding, the court failed to consider CMS’s alerts that it planned to create a review process wherein its new MSA contractor would be responsible for reviewing LMSAs beginning July 1, 2018.  The court appeared to only account for CMS’s previous inaction and not the indications of future involvement in personal injury claims.

While CMS has taken steps that suggest that the lack of clarity on LMSA’s will be addressed soon, the issue remains unsettled. We will continue to update our readers as the issue develops.

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Inman & Fitzgibbons Presents to the Rockford Area Society for Human Resource Management

Steve Murdock and Allison Mecher recently presented on the hot topic of Medical Marijuana and Opioid Use in the Workplace to the Rockford Area Society for Human Resource Management.

In this presentation, Steve and Allison provided an overview of Illinois’ Compassionate Use of Medical Cannabis Pilot Program, including how it works and how employers should handle employees active in the program. They discussed the trends seen throughout the nation, including workers’ compensation coverage for medicinal marijuana, as a guide to what can be expected in Illinois.  They provided some suggestions on what employers should have done by now and what they should do for the future as we look ahead to the anticipated next phase – legalization of recreational cannabis. They also discussed the disturbing trends related to prescription opioid use and the impact the opioid epidemic is having on Illinois employers.

If you have questions on this, or any other topic, and would like to discuss further or have I&F’s client education committee present to you and your team, please do not hesitate to call on us.

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Illinois Summer Legislative Update

Despite the weather turning warm and kids running free for the summer, the Illinois Legislature remains busy. Here is a brief rundown of a few bills of note pending before the House and Senate:

  • SB 904: Amends the Insurance Code to create an advisory council concerning education courses, course materials, curriculum and credential of instructors. However, more germane to the readers of this blog, a change to the Workers’ Compensation Act was later added through the amendment process. The bill requires employers and insurers to pay interest to providers at the rate of 1% per month for services rendered if the undisputed medical bill is not paid promptly. In addition, it authorizes providers to bring an action in circuit court to enforce the payment procedures. Finally, it also imposes penalties upon employers and insurers that fail to comply with the electronic claim process.
  • SB 1737: Amends the Insurance Code. Again, through the amendment process, the general intent of the bill and the amendment is to put tighter regulations on those writing workers’ compensation insurance plans.

Both bills have been sent to the Governor for consideration after passing the House and Senate. We will continue to keep a close eye on these pending bills, but wanted to make sure that everyone was aware of the amendment to SB 904 that imposes stricter financial considerations on insurers and employers. We note that there are competing bills, HB 5910 and SB 3617, that attempt to limit if and how a penalty is imposed for failure to promptly pay medical bills. These bills were just recently introduced and have not made it out of initial committee assignment.

Please stay with us as we continue to monitor the developments in Springfield.

Thanks to I&F Legislative Watch Group member Frank Johnston for providing the above summary.  Frank practices out of I&F’s Champaign office.

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Illinois WC Legislative Update: Partisan politics pushes SB 2863 and HB 4595 through the Senate under the guise of “reform.”

Last year, Governor Rauner requested for reform to the Illinois Workers’ Compensation Act, resulting in the appearance of HB 2525 and HB 2622 on his desk. He promptly vetoed each bill, presumably after realizing that neither bill provided any type of reform to the Act.

illinoishousechamberThe General Assembly has once again presented legislation in an attempt to satisfy Governor Rauner’s request for workers compensation reform, and their attempts at “reform” almost mirror their lackluster effort from last year. The Senate recently approved Senate Bill 2863, which is essentially the same bill as the previously vetoed HB 2525.

In essence, SB 2863 would achieve the following: Codification of Venture Newburg by establishing factors for determining traveling employee status and expands liability by also defining a traveling employee using a reasonable & foreseeable standard; Codifies current case law of “in the course of employment” & “arising out of the employment” and reinforcing the current “any” cause standard; and Allows AMA guideline submission for impairment rating for PPD benefit.  These are all current laws in Illinois and codifying each does nothing in the way of reform.

In addition, SB 2863 contains a unique addition to the Act that would provide employers a right of contribution from a prior employer for repetitive and cumulative trauma injuries. On its face, this seems like a win for the employer, but the unintended consequences of additional litigation between the employers could eat up any savings realized by the employer seeking contribution and substantially increase the legal costs of prior employers. Not to mention that employers would be required to insure for future claims by long-departed employees.

Currently, employers who have a history of providing safe work environment are rewarded through reductions in their insurance premiums (safer workplace = higher reduction). Many employers utilize safety and return to work programs to promote a safe workplace, but SB 2863 would cause a strain on implementing such programs. SB 2863 would require employers to submit any plans for a safety and return to work programs to the State for approval, a process fraught with red-tape delays.  This most likely entails additional costs and fees associated with submission of plans and would lengthen the frame before the employer receives any savings from the reduction in premiums.

SB 2863 also provides for additional methods of penalizing employers. For example, if an employer fails to pay or object to an electronically submitted bill within 30 days, then that medical bill shall be subject to penalties pursuant to Section 8.2 (d)(3) of the Act (1% interest penalty per month). SB 2863 also provides that the Commission shall impose an administrative fine if an employer or insurer fails to comply with the electronic claims acceptance and response process. The individual fines shall not be greater than $1,000.00 and there is a yearly cap of $10,000.00 for identical violations throughout the year. Adding these additional penalties, will only create an even greater burden on the employer in evaluating and addressing the numerous types of medical documents they receive on a daily basis.

There is a provision within SB 2863 that would allow the Commission to assess penalties for delay in authorization of treatment. This addition likely drafted in response the Appellate Court’s holding in Hollywood Casino (Which states that the Commission has no authority to assess penalties for delay in authorization of medical treatment). In addition to fining employers for “unreasonable or vexatious delay” of payment of medical, SB 2863 seeks to penalize employers who do not authorize treatment under the same standard.

SB 2863 does provide some benefits from the perspective of the employer. The bill reverses the ruling in Will County Forest Preserve District and returns us to over 100 years of precedent that the shoulder is not part of the whole person, but a part of the arm.  (It also states that the hip is part of the leg, not the whole person, just to make sure that does not become an issue with the courts in the future.) The bill also allows employers to receive credits on prior, specific spinal injuries. SB 2683 also requires IWCC to establish an evidence-based closed drug formulary for physician-provided medications, and would reportedly provide an estimated savings of $14 to $25 million. Finally, it would require the IWCC to establish a medical fee schedule for ambulatory surgery services, which we believe would have minimal impact to existing reimbursement levels for these services. (On May 16, 2018, the House Labor Committee advanced SB 2863 on a partisan 16 Democrat to 12 Republican vote.)

The House has also proposed HB 4595, a bill identical to HB 2622 that was also vetoed by Governor Rauner last year. HB 4595 would create a state funded workers’ insurance company (Illinois Employers Mutual Insurance Company) that would insure Illinois employers against liability for workers’ compensation and occupational disease claims. The new insurance company would receive its initial $10,000,000.00 funding from the IWCC and would operate as a non-profit corporation. The reported intent of the legislation is to provide the state some control over the cost of insurance premiums in Illinois by offering lower rates than hundreds of workers compensation insurers already competing for business within this state. The reality is that creation of a state funded insurance carrier would only create additional volatility in market with already shrinking profit margins.

The Generally Assembly is pushing SB 2863 and HB 4595 behind the mask of “reform.” We recommend contacting your state representatives and senators to voice your opposition to these Bills.

Thanks to I&F Legislative Watch Group member Jack Arnold for the review of this issue. Jack is based in the firm’s Chicago, Illinois office and has been an Associate Attorney with the firm since 2016. He practices in Employers Liability Defense, General Insurance Defense and Workers’ Compensation Defense.




IL WC UPDATE: Slip on Stairs After Work Falls into Gray Area

The Appellate Court recently reversed a Commission decision and requested additional findings from the Commission.  In MELANIE MARTIN, Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION COMMISSION et al., 2018 IL App (3d) 170344WC-U, the petitioner alleged an accident on January 6, 2015, after she had logged off of her computer at approximately 6 PM.  She began walking down the stairwell of her building to leave but then remembered that her cell phone was still upstairs on her desk.  While she was walking back up, she fell on a step that she alleged had a damaged or missing tread, injuring her low back.

She testified that each step had a treaded “lip or overhang” and that, on the stair in question, this lip was, “back a bit from the edge of the stair.”  Photographs taken by the petitioner depicted the missing part of the tread.  A witness from the employer investigated the stairs at issue and testified that there was some missing tread on the edges but that it was not “defective enough for someone to trip on.”

The Arbitrator ruled that the petitioner did not suffer an accident that arose out of and in the course of her employment, noting that the petitioner had already logged out and had began leaving when the fall occurred, that the decision to return for her cell phone was only for her own benefit, and that the tread at issue was, “not raised or buckled, and in fact even where the piece was missing, the height of the strip was exactly the same as that around the perimeter of the strip, namely 1/8 [of an inch].”

The Commission and Circuit Court affirmed the Arbitrator’s decision, but the Appellate Court reversed, deciding that the Petitioner was in the course of her employment and that the Commission had not properly analyzed whether the damaged strip had contributed to or caused the petitioner’s fall, and thus whether the claimant was exposed to an employment related risk.

The Court noted that an employee on the work premises who is arriving at or leaving work by a normal route and timeframe is within the course of their employment; the fact that the petitioner had not actually left the building before turning back for her cell phone was significant to the Court.  The Court also cited this fact in its analysis of whether the petitioner’s accident arose out of her employment.  Finally, the Court found that the decisive issue was whether the stairs were defective, and whether this defect contributed to the petitioner’s fall.  The Court stated that the Arbitrator’s finding on the nature of the missing tread was inconclusive and did not reach the final step of determining whether a potential defect exposed the petitioner to an employment related risk.   The Court remanded to the Commission for further elaboration on this issue.

Thanks to to Michael Bantz for this summary. Michael works out of the Champaign office of I&F and can be reached at mbantz@inmanfitzgibbons.combbons.com.

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IL Appellate Court Finds for Employer in Nurse’s Slip Down Stairs

Although we monitor the appellate court for all cases of importance in the states we cover, we are especially pleased to report on those cases where the courts carefully conduct the compensability analysis and produce a logical decision that can guide us in future cases. Lampert v. The Illinois Workers’ Compensation Commission, et al. (Ferrell Hospital, Appellee) is such a case. The facts of the accident are simple. The petitioner worked as a registered nurse for the Respondent. On November 26, 2012, after working a full shift at the hospital, she “clocked out” at approximately 8:00pm and headed to the parking lot where she typically parked her car. She exited the hospital to a set of carpeted, concrete stairs. As she descended the stairs, she reported that she held on to the handrail because it was dark. She slipped off the top step and fell all the way down, causing an injury to her left ankle. She was diagnosed with a left ankle fracture and underwent two surgeries.

At the time of the accident, she had a bag over her shoulder but had nothing in her hands. She described the weather at the time of the fall to be “misting and kind of sleety.” She also testified that it was dark. She admitted that the stairs and parking lot were both open to the general public as well as employees, but noted that most nonemployees used the hospital’s front door or its emergency room door to enter the hospital.

At Arbitration, the petitioner’s claim was denied as she failed to establish that her injury “arose out of” her employment. The petitioner appealed the decision to the appellate court. In a Rule 23 opinion, the appellate court affirmed the decision of the circuit court, commission, and arbitrator.

The basis of the petitioner’s appeal was two-fold: she was exposed to a neutral risk to a greater degree than the general public because (1) it was dark and the stairs were wet and slippery, creating a dangerous condition and (2) she traversed the stairs more often than the general public. The appellate court disposed of the initial argument in that the petitioner never attributed the darkness or weather conditions to the reason that she fell. Instead she simply testified that she slipped on the top step of the staircase. The interesting facet of this case has to do with how the appellate court dealt with the second aspect of her argument that she was exposed to an increased risk as compared to the general public because she traversed the stairs more often.

The court found that there was no evidence presented to distinguish the outdoor stairs claimant was traversing, even if those stairs were wet from rainfall, from any other outdoor stairway. The court did not have any evidence suggesting that the petitioner was more likely to slip and fall on her employer’s premises than she or any other member of the public would be likely to fall on any other outdoor stairway that was exposed to rainfall (citing Dukich v. Illinois Workers’ Compensation Comm’n, 86 N.E.3d 1161.)

This is a good result for all employers. As noted above, the interesting part of this decision is how the appellate court ruled regarding the petitioner’s position that she was exposed to an increased risk because she used the stairs more often than the general public. The appellate court did not blindly agree with the petitioner that just because she used the stairs at least twice a day (if not more as it was not clear from the opinion) she was exposed to an increased risk. Instead, the appellate court looked at the specific facts of the accident. The petitioner did not present any evidence that this particular set of stairs was more likely to cause a slip and fall as opposed to any other set of outdoor stairs used by the public. Interestingly, the appellate court did not conduct an analysis as to how often this particular petitioner used this particular set of stairs, limiting its review of the facts to the specifics of the stairs and the accident.

While the value of this opinion is limited as it was released under Rule 23 (cannot be cited), it does present a framework for disputing accidents for similar situations.

            Lawyer-FrankJohnston_tninman-fitzgibbons-logo-272x144Thanks to I&F attorney Frank Johnston for the reminder and update.  Frank works out of the Champaign office and is a member of the Champaign County Bar Association, Vermilion County Bar Association, and a founding member of the Young Lawyers Network and Champaign County Young Lawyers division. He has presented topics at the Champaign and Vermilion County Bar Associations.

Temporary Transitional Employment in Illinois WC

Few on the Respondent side of the bar would argue that there is no benefit to bringing employees back to work in a light duty capacity where that work is available.  Does the Respondent have any good available options where the employer does not have a position available within employee’s work restrictions?

Some companies, insurers, and TPAs in Illinois and other states utilize Temporary Transitional Employment programs (TTE) to facilitate an employee’s return to work in this scenario. The typical TTE scenario involves an employer unable to accommodate an employee’s light duty restrictions, but offers light duty work through another entity (i.e. a volunteer position at a non-profit such as the Red Cross). Employers will offer work through another entity in two distinct scenarios: 1) when an employer cannot accommodate an employee who has work restrictions on a temporary basis prior to reaching MMI; or, 2) when an employer cannot accommodate an employee who has work restrictions on a permanent basis after reaching MMI. This post will focus on TTE issues associated with the first scenario.

It is important to first note that TTE programs are not expressly addressed within the Illinois Workers’ Compensation Act, so guidance on this issue must come from prior Commission Decisions. There also have not been any Illinois Appellate Court decisions that directly analyze issues regarding TTE programs.

The most common issue involving TTE programs is the termination of benefits when an employee refuses a TTE assignment with another company. Employers argue that the employee’s refusal to accept the position is a valid basis to terminate benefits, but the Commission has consistently rejected with that argument. In Eric Alvarez v. Foodliner, Inc., the Arbitrator held that an employee has the right to refuse a TTE assignment and an employer cannot terminate an employee’s TTD benefits based on employee’s refusal of a TTE assignment. He further stated that “an injured worker is not required to perform TTE under the Act.” It should also be noted that if an employer terminates benefits based on an employee’s failure to participate in a TTE program, they could face additional exposure for penalties and fees.

What amount of compensation is owed to an employee who is working in a TTE program? Given that these are almost always unpaid “volunteer” positions, the employee participating in a TTE program should arguably continue to receive compensation that equals the amount of his/her TTD rate.

Bottom line for the Respondent:

Ultimately, at the current time it appears to be up to the employee to decide whether they are willing to participate in a TTE program.  That said, there is nothing in the Act that prevents an employer from offering employment through these types of programs.


Thanks to attorney Jack Arnold for the review of this issue.  Jack is based in the firm’s Chicago, Illinois office and has been an Associate Attorney with the firm since 2016 and practices in Employers Liability Defense, General Insurance Defense and Workers’ Compensation Defense.



The Illinois Workers’ Occupational Diseases Act versus the Workers’ Compensation Act

Claims under the Illinois Workers’ Occupational Diseases Act (820 ILCS 310/1, et seq.), do not arise as frequently as those under the Illinois Workers’ Compensation Act (820 ILCS 305/1, et seq.), but it is important to understand the similarities and differences between the two laws and best practices when an employee initiates a claim under the Occupational Diseases Act.

Under the Occupational Diseases Act, diseases caused by workplace exposure to hazardous conditions or substances, such as noise, chemicals, or dust, are compensated in a similar manner to accidents under the Workers’ Compensation Act. The Occupational Diseases Act is a separate law from the Workers’ Compensation Act, but is also administered through the Illinois Workers’ Compensation Commission, and the remedies provided therein are almost identical to those provided in the Workers’ Compensation Act.

Occupational disease” is defined in the Occupational Diseases Act as a “disease arising out of and in the course of the employment or which has become aggravated or rendered disabling as a result of the exposure of the employment.”  In order to establish an “aggravation” of a disease, it must “arise out of a risk peculiar to or increased by the employment and not common to the general public.”

This is similar to the “accident” element of a Workers’ Compensation Act claim, where the employee is required to show proof that he or she has sustained accidental injuries arising out of and in the course of the employment, which includes proof of an “increased risk” of injury connected with, or incidental to, the employment.

But, there are differences between the two Acts. While a disease may be compensable under the Workers’ Compensation Act if it is either aggravated or caused by accidental injury or trauma, the Occupational Diseases Act applies to diseases caused or aggravated by a “gradual insidious process.” To illustrate, compare several years of exposure to a chemical causing health problems ten years later, versus a slip and fall at work resulting in an immediate injury with a readily identifiable date of accident. The focus in occupational diseases is on “exposure” rather than on a physical accident, and the “accident date” we are familiar with in workers’ compensation claims is actually the “date of last exposure” for occupational diseases.

As another example of a difference between the two laws, the Occupational Diseases Act explicitly includes overtime earnings in the calculation of average weekly wage.

Thanks to Attorney Allison Mecher for this helpful guide to the differences between the two Acts. For more on this topic, please let us know if you would be interested in our full presentation entitled The Illinois Workers’ Occupational Diseases Act versus the Illinois Workers’ Compensation Act- Contrasts and Comparisons. In this presentation, we will discuss the Occupational Diseases Act and compare it to the Workers’ Compensation Act, highlighting similarities and differences, and the practical impact of the differences for Illinois employers.


I&F Prevails as IL WC Arbitrator Finds Petitioner is Not Permanently Totally Disabled

In a recent case before an arbitrator at the Illinois Workers’ Compensation Commission, Associate Attorney Lauren L. Waninski prevailed in defense of an alleged claim by the claimant for permanent total disability benefits. The claimant alleged that a slip and fall at work caused injuries to her knee, cervical spine and lumbar spine. The claimant testified that as a result of her injuries she required surgeries and work restrictions which rendered her unable to work for the employer.

The employer’s independent medical examiners noted the claimant had preexisting pathology to the knee, cervical spine and lumbar spine. The independent medical examiners opined the claimant’s conditions were not work related.

Additionally, the employer’s vocational rehabilitation counselor identified employment opportunities the claimant qualified for noting that she obtained advanced degrees while off of work.

The arbitrator in this case found that the claimant failed to prove the injuries sustained resulted in permanent total disability benefits. The arbitrator noted that the claimant failed to return to work for the employer and failed to show she attempted a return to work in any capacity.

Congratulations to Associate Attorney Lauren L. Waninski  and to our client on this victory, which was accomplished through diligent teamwork on the part of the employer, its third-party claims administrator and our office. Lauren works out of the Chicago, IL and Lansing, MI offices of Inman and Fitzgibbons and serves on the Firm’s Client Education Committee.


New Missouri bill proposes several workers’ compensation reforms.

Missouri State Representative Bruce DeGroot (Chesterfield) introduced a bill to the Missouri House of Representatives on January 3, 2018, which seeks to modify the state’s workers’ compensation law.  If H.B. 1693 is passed, it would become effective in August of 2018.  The bill includes numerous modifications to the Act.

The bill would require that in order for work-related stress to be compensable, the stress must be compared to the stress of employees working in the same position as the claimant.   For example, it would require the stress of a first responder to be compared to the stress of first responders in general as opposed to being compared to a general worker.

It would further prohibit any injuries sustained while traveling from the claimant’s home to work from being found to be compensable.

The bill also would eliminate the reactivation provision which allow claims to be re-opened for several reasons related to prosthetics and life-threatening procedures.

When liability is disputed, the bill allows review of temporary or partial awards by the Appellate court.

The bill further requires that the prevailing factor on occupational causes be compared to all non-occupational factors combined rather than a single non-occupational factor

The bill also would repeal a provision which prohibits employers from subrogating the rights of an employee or their dependents in certain claims in which a third party is liable to the employee or dependents.

In addition, the bill would eliminate the requirement to find recreational activities compensable when the employee is paid wages or travel expenses.

Finally, the bill surprisingly includes opening a new city Division office in Chesterfield and the potential closing of the Division office in St. Louis.

As outlined above, if passed, the bill will have significant effects on employees and employers.  While it has been read for the second time, it is not currently on the house calendar. We will continue to follow the progress, if any, of this bill.

This Missouri legislative update was brought to you by Partner Jill Baker.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at jbaker@inmanfitzgibbons.com. Please feel free contact Jill with any Missouri workers’ compensation questions.

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I&F Prevails in IL WC Claim where Petitioner’s Bilateral Carpal Tunnel found Unrelated to Work Duties

I&F Attorney Michael Bantz recently prevailed in a trial over the disputed issue of the Petitioner’s bilateral carpal tunnel conditions.  The Petitioner alleged that his diagnoses were due to repetitive trauma from his work as a Patrolman and Correctional Officer for a Sheriff’s Department.  The Petitioner testified that his duties involved a wide variety of tasks, including responding to calls, writing tickets, escorting inmates, monitoring security cameras, and processing new inmates.

The Petitioner’s surgeon testified that these job duties had caused or aggravated her bilateral carpal tunnel conditions; however, the very limited extent of his knowledge regarding the Petitioner’s job duties was brought to light through diligent cross-examination.

The Arbitrator found the Respondent’s expert witness and IME physician to be much more credible, knowledgeable, and convincing.  In his direct and redirect testimony, the Respondent’s IME physician was able to clearly and succinctly explain his detailed knowledge of the Petitioner’s job duties and the physical nature of his work tasks.  Based on the contrasting testimony of the two expert witnesses, the Arbitrator found that there was no causal relationship between the petitioner’s bilateral carpal tunnel and his work duties.

The key to the result in this case was being able to attack the underlying foundation for the opinions of the Petitioner’s expert medical witness, while simultaneously ensuring that the Respondent’s expert witness was provided with thorough and detailed facts regarding the specifics of what the Petitioner’s job duties entailed.

Congratulations to Michael Bantz. Michael works out of the Champaign office of Inman and Fitzgibbons and can be reached at mbantz@inmanfitzgibbons.combbons.com.

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I&F’s Mark Carter admitted to practice in the State of Iowa

lawyer-markcarter_tnInman & Fitzgibbons Partner Mark Carter recently had the honor of appearing before Iowa Supreme Court Justice Thomas D. Waterman. Upon confirmation that Mark had been admitted to practice law in the State of Illinois for the requisite amount of time and was of good moral character, Justice Waterman administered the Iowa Lawyer’s Oath, at which time Mark was sworn in to the Iowa Bar on an Admission on Motion.

Mark Carter joins partner Terry Donahue in the firm’s Iowa practice located in Des Moines, Iowa and will cover the entire state and provide a full range of Workers’ Compensation Defense and General Liability Defense services.


Study suggests opioids had no pain-relieving advantage in a yearlong clinical trial

The L.A. Times reported yesterday that researchers now have hard data that challenges the view that opioids’  pain-relieving benefits justify their risks.  According to the Times, in the first randomized clinical trial to make a head-to-head comparison between opioids and other kinds of pain medications, patients who took opioids fared no better over the long term than patients who used safer alternatives. Researchers concluded in the Journal of the American Medical Assn that “there was no significant difference in pain-related function between the 2 groups over 12 months.”

The Times reported that the study’s authors concluded that “by some measures, the people using non-opioid drugs such as Tylenol, ibuprofen and lidocaine experienced more pain relief than people using medications like morphine, Vicodin and oxycodone — though the differences weren’t large enough to be considered statistically significant.”

The trial — Strategies for Prescribing Analgesics Comparative Effectiveness, or SPACE — was funded by the Department of Veterans Affairs and enrolled patients who were treated by the Minneapolis VA. All of the patients had pain in their backs, hips or knees for at least six months, and that pain was bad enough to interfere with their daily activities and enjoyment of life. A total of 240 patients were randomly assigned to either the opioid or nonopioid group. About two-thirds of them had back pain, and the rest had osteoarthritis pain in their knees and hips.  According to the Times, the study authors cautioned that these results might not apply to pain patients in general, since VA patients aren’t representative of the country as a whole.

“Overall, opioids did not demonstrate any advantage over nonopioid medications that could potentially outweigh their greater risk of harms,” wrote the team led by Dr. Erin Krebs of the Minneapolis Veterans Affairs Health Care System’s Center for Chronic Disease Outcomes Research.

Of potential and particular significance to the WC industry, the Times noted that Dr. Krebs and her colleagues conclude that “treatment with opioids compared with non-opioid medications did not result in significantly better pain-related function over 12 months,” and that, “Results do not support initiation of opioid therapy for moderate to severe chronic back pain or hip or knee osteoarthritis pain.”

Thank you to The L.A. Times and reporter Karen Kaplan (karen.kaplan@latimes.com) for bringing this important study to our attention.

Inman and Fitzgibbons Announces New Partners

Inman & Fitzgibbons is pleased to announce that Jill Baker and Kristin Thomas have been named as partners with the firm.

jbaker-37_color-200x300 Jill has been with the firm since 2000 and currently serves the firm’s clients in both Illinois and Missouri.  Jill is has long set the standard for exemplifying the firm’s motto of making client service our top priority. You can read some of Jill’s WC  industry updates from our blog here, and here and also read about her recent appellate court win.



Lawyer-KristinHofer_tnKristin joined the firm in in 2010 and since that time has established herself as one of the leading attorneys in the practice.  She routinely presents on behalf of the firm as you can read about here. You can also read more about Kristin from our blog here.


We congratulate them on this achievement and wish them continued success. Please join us in congratulating both Jill and Kristin.

I&F Prevails as IL WC Arbitrator Awards a “Zero” for PPD and Orders TTD Credit for Employer

In a recent case before an arbitrator at the Illinois Workers’ Compensation Commission, Attorney Allison Mecher prevailed in defense of an alleged claim for permanent partial disability benefits for eye injuries. The claimant, a cook, alleged that he was pulling a grease scraper brush out of a cabinet and a cleaning chemical fell onto the floor and splashed chemicals into his eyes. The employer accepted the accident as compensable and paid for the claimant’s time off of work and related medical expenses. The claimant was initially diagnosed with a minor chemical superficial keratitis, but later claimed issues with ocular itching and burning, vision loss, glaucoma, and headaches, which he related to the work accident. He missed two weeks of work, although it was revealed at trial that he had never been authorized off of work by any doctor. His treating doctors confirmed that his acute keratitis had resolved shortly after the chemical splash and questioned the etiology of his continued complaints, noting inconsistencies on his objective testing.

The employer’s independent medical examiner, an ophthalmologist, performed extensive testing of the claimant and gave a detailed causation opinion with regard to each alleged condition of ill being. Most notably, the IME doctor concluded that the claimant did not have any vision loss secondary to the chemical splash and that he was magnifying his symptoms. She opined that there was no significant chemical injury to the right eye and no chemical injury to the left eye, and that any injuries sustained resolved completely within about a week of the work accident. She opined that the claimant could perform his full duties without any ocular restriction, and that he had no disability, disfigurement, or loss of vision secondary to the work accident.

The arbitrator found the employer’s IME opinion to be credible and adopted the IME doctor’s opinion on the issue of permanency. The arbitrator found that claimant sustained 0% permanent partial disability to the right eye and 0% permanent partial disability to the left eye as a result of the work accident. In addition to the zero award, the arbitrator also ordered that the employer shall be given a credit for the temporary total disability benefits that were paid for the lost time from work, finding that the claimant was not entitled to compensation for any period of TTD and that an overpayment was made to the claimant for two weeks of TTD.

No Petition for Review has been filed, so this decision will be entered as the final decision of the Commission.

Congratulations to Allison Mecher for the excellent result.  Allison works out of the firm’s Chicago office.

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I&F and the Illinois Chamber of Commerce to Present on Revised Workers’ Compensation Manual

2018 Illinois Workers’ Compensation by the Book – Seminar and New Book

March 15 – Naperville


April 10 – Effingham

9am – 4pm

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This full day interactive workshop, presented by attorneys from the law firm of Inman &  Fitzgibbons Ltd. will explore Illinois’ confusing Workers’ Compensation System in depth.

The newly revised Workers’ Compensation Manual (authored by attorneys from Inman & Fitzgibbons Ltd.) will serve as the guide for the day and participants will take home their own copy of the book.

Member Rate – $339

Non-member Rate – $389

Save $50 if you register within 10 days prior to the event

Register at the Chamber’s website.

The Involvement of Nurse Case Managers in Indiana Claims

When discussing medical benefits for work-related injuries in Indiana, it is often said that the employer is responsible for directing medical care for injured workers.  Members of the Indiana Worker’s Compensation Board are often quick to correct the common misconception that the employer “directs” medical care.  Instead, pursuant to Indiana Code 22-3-3-4, it is the responsibility of the employer to “furnish” an attending physician for the treatment of an employee’s work-related injuries.  The attending physician then directs the medical care.

To assist with furnishing medical care and adjusting their worker’s compensation claims, employers or their insurance carriers sometimes enlist the services of a nurse case manager (“NCM”).  Generally, a NCM should act as a liaison among the involved parties including the employee, employer/carrier, and medical provider.

The Indiana Worker’s Compensation Act does not contain specific provisions governing the involvement of nurse case managers in worker’s compensation claims.  However, by way of a written notice on its website, the Board has provided that:

A NCM may be involved in a claim to schedule appointments, help facilitate care suggested by the medical provider, and to report back to the employer and/or carrier.  However, a NCM should not express opinions, to either the injured worker or the medical provider, regarding an injured worker’s course of medical care or otherwise attempt to influence the process.  Additionally, a claims adjuster should not attempt to direct the care provided to an injured worker by the authorized treating doctor.

While NCMs often provide a useful tool for adjusting claims in Indiana, it is important for claims handlers and NCMs to be familiar with and to follow the guidelines set forth by the Board.  To that end, it is plainly apparent from the above guidelines that the role of the NCM should be limited to that of a facilitator or liaison and that any attempts to direct or influence an injured worker’s medical care may be in direct conflict with the Board’s guidelines.

The above guidelines were handed down by the Board quite some time ago; however, the involvement of NCMs in worker’s compensation claims continues to be a topic of discussion among attorneys and the Board.  Recently, it has been suggested that the Board is considering amending these guidelines.  Please continue to follow our blog for further updates on this topic and feel free to contact us to discuss this and any other topics involving worker’s compensation claims in Indiana.

Thanks to attorney Dane Kurth for this important summary.  Dane represents employers in both Illinois and Indiana on behalf of the firm.

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Iowa Supreme Court Reverses and Remands $25 Million WC Bad Faith Jury Award

In the case of Thornton vs. American Interstate Insurance Company, (May 19, 2017) the Iowa Supreme Court agreed that a workers compensation insurer had acted in bad faith as a matter of law in opposing an undisputed PTD claim at hearing, but disagreed that   its opposition to a partial commutation was also in bad faith.  The jury had  awarded  $25 million in punitive damages and $284,000 in compensatory damages.

The facts are complicated but important in order to understand the bad faith behavior claimed. In June 2009, the Employee was paralyzed below his chest, leaving him with no use of his left hand and limited use of his right hand, from a work related driving  accident. The insurance carrier’s conduct in addressing the claim included the following: The adjuster went to the hospital within two days, met with the family, and advised that  benefits would begin immediately. Two weeks after the accident the insurer received a medical opinion from Employee’s examining  physician that Employee was permanently and totally disabled (PTD). The carrier internally acknowledged and reserved his claim as PTD and began benefits that week. These benefits continued through trial. The Employee’s attorney requested wage documentation multiple times over two months, which was eventually provided, and which resulted in a $7 per week increase based on the new agreed wage.  When released from the hospital, the Employee moved into his in-laws’ home and the insurer arranged for modifications including installing a shower and hospital bed.  The insurer provided a wheelchair and van which was specially modified to the Employee’s height and weight.  In June of 2010, the carrier hired a home health care nurse so the Employee’s wife could return to work. Then, when the Employee separated from his wife and needed to move out, the carrier arranged for home health care and  modifications to his new apartment. The carrier also arranged for the Employee to take a disabled driver’s test.

In March 2011 the treating doctor opined that the Employee was at MMI. The carrier continued paying weekly benefits, assuming this was a PTD case. The insurer made two structured settlement proposals to Employee at that point (with Medicare Set-Aside provisions), but the Employee did not wish to discuss settlement until his divorce was finalized.  In May of 2012 , the Employee filed its Petition, alleging that he was PTD.  The carrier denied the PTD claim in its Answer.  In subsequent discovery, the Employee testified that he would like to get a job someday. Additionally, a vocational report was obtained by the Employer/Carrier in February of 2013 indicating that jobs may be available to the Employee.   Discovery further revealed that in March of 2013, defense counsel had met with the treating doctor regarding his opinion the the Employee was permanently and totally disabled, and, following that, the attorney reported that the treater was not going to be changing his PTD opinion.  He recommended that the carrier agree to settlement on a PTD basis, and warned that they may  face sanctions if they failed to do so. Nevertheless, the Employer/Carrier proceeded to hearing and contested the claim of a PTD, with the adjuster explaining that they felt they had at least the right to go to hearing. On May 23, 2013 the Deputy found the Employee to be permanently and totally disabled.

Shortly after the PTD award, the Employee filed a petition seeking partial commutation of the PTD award in a lump sum of $761,957 in order to buy a home, pay attorney’s fees,  and invest. The record demonstrated that the Defendants felt that although there was a good chance the Employee might be awarded the partial commutation, they also believed he was not  entitled to it.  As such, the Defendants resisted the petition. The Defendants offered evidence that the Employee had a history as a poor money manager.  They also presented experts who opined that commutation was not in his financial best interests and he did not have a sound game plan to protect or justify the lump sum commutation. The Employee presented his own experts who opined that the commutation was in his best interests if did not invade the principal. In May of 2014, the  Deputy granted partial commutation in a decision sharply critical of Defendants, and also awarded the costs of the Employee’s two experts.

Thereafter, the Employee filed a civil action for bad faith claims handling against the insurance carrier, alleging bad faith in disputing whether the Employee was PTD, and in contesting his petition for a partial commutation (lump-sum) award. 

The district court instructed the jury that the insurer, by contesting the PTD claim and commutation, had acted in bad faith as a matter of law by March 11, 2013 (nearly four years after the accident), and that the jury was to determine to what extent the carrier had acted in bad faith prior to that time. The jury then found the insurer had committed bad faith as of September 1, 2009, coinciding with its refusals to give wage information and its internal recognition of a PTD claim. The jury awarded $284,000 in compensatory damages and $25 million in punitive damages.

On appeal of that decision, the Supreme Court first agreed that the insurer knew or should have known it lacked any reasonable basis to dispute that the Employee was  permanently and totally disabled, and, therefore, held that portion of the jury instruction was not in error.

The Supreme Court then analyzed the issue of whether a workers’ compensation insurer that pays weekly benefits can still be found in bad faith. It rejected the insurer’s argument that since the insurance contract was not introduced into evidence, and since all PTD benefits were paid, bad faith could not be found due to no showing of a denial of a right  guaranteed  in the contract.  The Court explained that insurance contracts contain an implied covenant of good faith that neither party will do anything to injure the rights of the other in receiving the benefits of the agreement. The Court further stressed that the reason the tort of bad faith claims handling is recognized in Iowa is  because traditional damages for breach of contract will not always adequately compensate an insured for an insurer’s bad faith conduct.  The Court also noted that insurance policies are contracts of adhesion, with unequal bargaining power between the insurer and insured.  The Court explained that to establish a first-party bad-faith claim against a workers’ compensation insurer, the plaintiff must show: (1) that the insurer had no reasonable basis for denying benefits under the policy and, (2) the insurer knew, or had reason to know, that its denial was without basis.

The Court concluded that the workers’ compensation insurer unreasonably contested the Employee’s PTD status at hearing despite early opinions from a medical professional and its own claims adjuster that the Employee, a quadriplegic, was permanently and totally disabled.

However, the Court  did find that the lower court erred by instructing that the insurer was in bad faith as a matter of law for resisting the partial commutation.  The Court disagreed that settlement negotiations rather than immediate stipulation to PTD was  bad-faith conduct, explaining that negotiations can be mutually beneficial to both employees and insurers, and that all parties are entitled to engage in settlement negotiations.  Regarding resisting commutation, the Court explained that commutation is different than the payment of weekly benefits, which are commanded by statute.  Commutation is only appropriate if the Employee demonstrates that commutation is in his best interests and therefore involves a weighing by the Commissioner of the worker’s preference and the benefits to the worker of receiving a lump sum payment against the potential detriments that would result if the worker invested unwisely, spent foolishly, or otherwise wasted the funds.  The Court concluded the insurer was not in bad faith for resisting commutation because the Employee’s petition for commutation was fairly debatable on its facts due to omissions in his proposed budget, his past spending habits, and his lack of experience with investments.

The Court held that the district court erred by instructing the jury that the insurer acted in bad faith by opposing the Employee’s commutation. Therefore, the Court concluded that the trial was fatally tainted by the erroneous instruction.  As such, the Court remanded the matter for a new trial on liability and damages, although the separate instruction that the insurer acted in bad faith in opposing the PTD claim was upheld.

This case illustrates the many pitfalls potentially facing an insurance carrier when handling a  catastrophic claim of this nature, and the painstaking care which must be taken with every claims handling decision in order to demonstrate reasonableness and  compliance with  Iowa  workers compensation law.  Thanks to I&F Partner Terry Donohue for thus summary of this case.  Terry handles Iowa claims for the firm and works out of the Chicago and Des Moines offices of Inman and Fitzgibbons.  Please feel free contact Terry with any Iowa workers’ compensation questions.