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