Illinois: The State Of Comp

June 2017

By Francis M. Brady

Writing about developments in Springfield is a bit like forecasting Illinois weather: tricky due to sudden changes. My lawyer's tendency to avoid absolutes becomes even more pronounced when I handicap legislation. Still there are things you ought to know so, with the caveat that nothing is ever completely certain in the State Capitol, here is where Workers' Compensation reform stands "as I write."

HB 2622 enacting a State run Comp Insurance carrier (funded initially by a 10 million loan from the IWCC Operations Fund) was passed by the Senate last Friday and now is on the Governor's desk. He almost assuredly will exercise his veto.

Also last Friday the Senate amended HB 2525 and returned it to the House where it passed on a party line vote yesterday (May 31, 2017). I expect it, too, will be vetoed by the governor.

The first measure is hard to take seriously. The notion that, in its present financial circumstances, the State is going to redirect 10 million dollars to start an insurance company, to me seems a hard sell to the electorate. In any event, the chances the Governor signs off on the project approximate those of me being selected in the NBA Draft.

While the chances aren't much greater that he'll approve the second piece of legislation, its content requires we consider its possible benefits. In summary, HB 2525 sponsored by Representative Jay Hoffman:

• Establishes a great deal more oversight of Comp carriers, specifically fettering their ability to raise rates. If, for example, a carrier deviates from the rate recommendations of NCCI, its proposal will be subjected to heavy scrutiny . And insureds are provided the means to challenge their premiums on an individual basis. A task force is created to review, throughout 2017, rates in Illinois in context of what NCCI recommended and to report its findings to the General Assembly.
• Allows an employer to secure rate reductions by establishing safety and return to work programs.
• States a carrier may not factor into an employer's experience, repetitive trauma injury to an employee within 3 years of her start date.
• Provides that where a worker is hurt on the job performing an activity he had a common law or statutory duty to perform he is entitled to benefits. In other words even a task unconnected to the subject employment may arise out of it if the action was required of claimant by law.
• Particularizes factors to be considered in determining "traveling employee," for example, did the employer arrange or pay for travel). Codifies the notion that injuries a traveling employee sustains on the road are compensable so long as the activity in which she is engaged when hurt was foreseeable by her employer.
• Determines shoulders are once again part of the arm and hips the leg.
• Allows that within a year after an employer pays an award based upon cumulative trauma it can proceed at the IWCC against other employers for contribution based on the causative role their employment played.
• Introduces for the first time by name IMEs into the process by which disability is calculated.
• Requires that where a provider submits bills electronically with all necessary supporting documents the carrier must pay within 30 days.
• Creates a rebuttable presumption that failing to authorize treatment for any injured worker for more than 14 days is unreasonable and sanctionable (30/day up to 10,000 or the total of the bill whichever is less).
• Enhances the impact of the Fraud Unit, expanding it to at least 10 investigators.
• Establishes a credit for prior 8d2 recoveries for neck and mid and low back injuries. (Senate Amendment, Raoul)
• Requires the implementation of an evidenced based drug formulary (though I don't like the way there seems no deadline set for the fulfillment of this action) (Senate Amendment Raoul)
• Requires the Commission yearly monitor ambulatory care facilities to ascertain whether all care rendered is listed on the fee schedule. Again, the language seems loose. I cannot tell what happens when the IWCC determines a modality is not Scheduled. (Senate Amendment Raoul)

HB 2525 inarguably contains measures of benefit to business. Granted, "primary cause" is not mentioned but the majority is not going to concede on "causation." Likewise recalibrating the assessment of "disability" so only AMA Guidelines count is simply not achievable unless and until more Republicans are elected.

But what IS achieved by this legislation is not insubstantial. I wonder if it is too bad the Governor won't sign! We are never going to get everything and what we have in hand here is quite a bit. The business lobby issued a press release condemning this piece of legislation as "fake reform." I don't have access to its cost data but, as a practitioner, I believe this assessment is a tad pessimistic.

Of course, there are negatives. Specifically, carriers will be subject to potentially intrusive oversight, certainly a level of scrutiny not heretofore encountered.

Now if I can just get these observations published before our representatives and senators change their mind.