Medical Investigation & Argument Wins Over CMS

January 2019

By: Marina Takagi Cobb

The Firm was defending a Comp case brought by a petitioner who initially asserted an injury to his foot. While diagnostic imaging of the right foot and ankle showed no fractures, petitioner continued to complain to his orthopedic surgeon of not only right foot pain but, also, right knee discomfort. He asserted he had to “twist(ed) the leg” in the accident. The surgeon diagnosed a right foot crush injury, a right foot contusion, and a right knee sprain/strain, for which the petitioner underwent conservative treatment. Within a month of the alleged incident, the orthopedic surgeon noting the petitioner was exaggerating symptoms and complaints, released him from treatment, and sent him back to full duty.

The petitioner then sought a second opinion from another orthopedic physician. This time, the petitioner alleged right hip pain that was exacerbated by the work incident. The petitioner also complained of shoulder pain and low back pain.

“Oh! What A Tangled Web”

January 2019

By: Farrah L. Hagan

Petitioners can often explain away film of them doing activities outside of their restrictions on just one occasion. The key to effectively using surveillance is to capture more than a single episode. Surveillance is most damning when it shows a pattern of exertion falling outside of existing physical limitations.

Once such surveillance is developed, its existence should be guarded against disclosure. Keeping it secure until trial is often the most effective way of impeaching petitioner’s credibility. Thus, think carefully before sending surveillance video to your IME doctor for review. If you do, you’ll have to turn it over to the petitioner’s attorney before the doctor’s testimony. Once film is in the hands of petitioner, he can inform his testimony accordingly and you can expect he will be ready with an explanation of his activity and how badly he felt afterwards.

New Legislation Allows More Comp Litigation

New Legislation Allows More Comp Litigation 1.

December 2018

By: Francis M. Brady

Hornets! Nine hundred and four!
We scream as we race for the door.
Though the swarm's now arising
Is that really surprising?
Its nest had been built long before.

Medical care rendered after November 27, 2018, for work-related injuries, imposes additional responsibilities on Business. 2.

Previously, it was obligated to timely pay the cost of the worker's reasonable and necessary medical expenses pursuant to the pricing guidelines of the Illinois Fee Schedule. If it delayed payment, Business risked a proceeding by the worker under Section 8(a) of the Comp Act at the Illinois Workers' Compensation Commission to force payment of the bill's principal and interest, and possibly to collect penalties, including attorney's fees.

The Truth is Out There

December 2018

By: Mark F. Vizza

Curtis Linen claimed he hurt his right shoulder, lower back, and neck while driving a tractor-trailer for Marten Transportation on April 25, 2016. The version he gave of the trauma was that his rig had been stopped a short time when, suddenly, he felt a large jolt. The only other thing he recalled of the accident was getting out of his cab and seeing another truck which had been damaged. He was transported on an emergency basis to Edward Hospital where he was treated and released. The next day he underwent a blood test.

He didn’t treat for the injuries he associated with the vehicular accident until May 9, 2016. On that date, he presented to Illinois Ortho Network where physical therapy was prescribed for his neck, back, and right shoulder. He underwent the therapy from May 11, 2016 through August 23, 2016. His pain and limitation did not abate so his treating orthopedist, Dr. Giannoulias, recommended shoulder surgery. Throughout this time period, Linen was also being treated by a psychologist, Dr. Kelly, for mental disability he attributed to the April 25, 2016 accident.

Two Birds, One Stone: Simultaneously Concluding Work Comp and Civil Litigation

December 2018

By: Jeffrey F. Clement

The Petitioner sustained eye injuries while laying carpet. Not only was he the sole employee of the Respondent company, he was its President. Defending against his attempt to recover Comp benefits, BCM obtained a copy of the Respondent’s workers’ comp insurance policy. Careful scrutiny confirmed petitioner was not protected. Specifically, he executed a form electing to opt out of coverage. BCM notified Petitioner’s attorney that the case would be fought in consideration of his client’s choice.

Counsel for Petitioner believed he would be able to argue in his client’s favor based on either an equitable remedy or by arguing the policy to be illusory. In other words, counsel thought it was “not fair” the Petitioner could pay premiums but not be covered for his injuries sustained at work. The issues counsel raised would require a Declaratory Judgment action in the law courts for their resolution.

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.