Legislative Update

November 2018

By: Francis M. Brady

As a statutory remedy(1.), Illinois Workers’ Compensation practice can be shifted abruptly and drastically by the Illinois General Assembly. Examples of this particular feature include the implementation of a Fee Schedule in 2005 and the adoption of AMA Guidelines in 2011. By pushing buttons, literally, in Springfield, legislators fundamentally alter the operation of Work Comp in Illinois.

It behooves those interested in the Comp system to remain abreast of events in the State Capitol. Indeed, monitoring our Governor, Senators, and Representatives is critical to sustaining the rights of business. But as the vigil is kept, it becomes clear that those making the rules do not always have a solid grasp of what they are ruling on. That misapprehension can lead to unintended legislative outcomes.

A prime example of unintended consequences is SB 904, a measure passed last spring. The purpose of that bill, as stated by its proponents, was laudable: getting healthcare providers timely paid. In debating SB 904, they insisted its changes covered only undisputed medical charges. However, the terms of the measure failed to clearly state any such limitation. Thus, it is possible that the rights granted to the medical providers to sue in Circuit Court to collect interest, might be asserted against bills which have been properly denied.

Even more unfortunate, the terms of SB 904 may make it easier for a provider to withhold full information regarding the care underlying the charges.

Governor Rauner vetoed SB 904 in August stating, “It was not reform, does nothing to assist injured workers and dramatically tips the balance in favor of medical providers…” But, the likelihood that the Legislature will override the Governor’s veto is great, at least judging by the size of the favorable vote in both chambers in the spring session.(2.)

Another bill passed overwhelmingly by the Legislature last spring, HB 4643, may also yield unintended consequences. It provides that a physical therapist can treat a patient without a referral.

The intent was, apparently, to protect a physical therapist who treats unaware of all the circumstances of the injury or the existence of a treating doctor. The bill’s language gives a therapist a 5-day grace period during which she can treat without letting anyone know. At the 5-day mark, she’s got to notify the treater or she can’t go on.

So does the measure oblige the employer to pay for up to 5 days of physical therapy where no treater has directed such care?

While at first blush, the language of the statute seems to indicate “yes,” closer inspection shows that, to the contrary, it actually establishes a good basis for the employer to deny the therapy. The idea that a therapist can take it upon herself to come up with a treatment plan, and execute on it, is not the kind of evidence based medicine for which the Act holds an employer liable. Thus the therapist “prescribed” physical therapy will not pass UR muster. If the doctor gets notice on the 5th day and then backfills (in other words, tries to validate the PT retroactively), he looks questionable, like he is deferring to a physical therapist.

HB 4643 also mandates that a therapist refer a patient to her treating healthcare professional of record or, if none, to a professional of petitioner’s choice if there has not been “measurable or fundamental improvement in the patient’s condition after 10 visits or 15 business days, whichever comes first and continued improvement thereafter,” or the petitioner returns for the same or similar condition 30 days after having been discharged by the therapist.

As with the language requiring notice to the doctor of the commencement of PT within 5 days of its initiation, the obligation of a therapist to refer petitioner back to a doctor where there has been no improvement, opens up fertile ground for disputing the reasonableness and necessity of ongoing physical therapy. It creates a threshold of 10 visits, or 15 days, at which improvement must be demonstrated. If none is shown, and petitioner is referred back, we can seize the position that no further therapy will help. Wishing to avoid this consequence, the knowing therapist will, of course, record improvement. Even so, that will simply afford us empirical evidence of petitioner’s improvement based on which we can dispute a later claim for significant disability. Either way, the employer wins.

Another piece of legislation, this one of particular concern to carriers reveals the mindset prevalent among members of the majority party in Springfield, that the true cost drivers in the system are insurance premiums. “Illinois House Oks Development of State Financed Comp Insurer,” Insurance Journal April 30, 2018. See also “The War on Workers’ Comp,” In These Times, June 13, 2016. That measure, SB 1737, imposes restrictions on a carrier’s ratemaking autonomy. Specifically the carrier must give timely notice of premium increases and explain the reasons underlying them. As with SB904, Governor Rauner vetoed SB1737 in August stating, in pertinent part, that it fails to appreciate the true cost drivers of delivery of Comp benefits. Of course, the Legislature, given the original vote, most likely will override the Governor’s veto.

Lawmakers will only become more convinced that significant cost savings can be achieved by regulating a carrier’s ability to establish premiums with the advent of the new administration.

Mention of the new Governor provides a fitting coda to this review of developments in Springfield. For, in considering the likelihood a statutory remedy will change, an essential principle to bear in mind is the party philosophy in control. Certainly with the victory of Governor-elect Pritzker, not to mention the enhanced Democratic majorities in both chambers of the Illinois General Assembly, the prevailing philosophy empowers the employee. The delivery of workers’ compensation benefits will change accordingly, including the size of most awards.

There is far too much bubbling under the Capitol dome to ignore the cauldron. Granted, the brew sometimes gives off foul odors or spills messy liquids, but, if we do not keep watch, it may well combust with the contents engulfing us all in a fetid stew.

(1.) “Workers’ compensation is a statutory remedy…and the Commission is limited to those powers granted by the Legislature…(a)ny action taken by the Commission must be specifically authorized by statute.” Cassens Transport Co. v. Industrial Commission, 218 Ill. 2d, 519, 525 (2006).

(2.) Just as this issue of the Brady, Connolly & Masuda Practice Alert went to press, the Illinois State Senate, indeed, did override the Governor’s veto. It now awaits override by the House which should come after Thanksgiving.