Employment Law Council Policy Review
May Edition 2008
Return of the Structural Work Act
Reinstatement of the Structural Work Act (SWA) recently advanced out of the House Judiciary Civil Law Committee as Amendment #1 to HB 2094 under the name “Construction Safety Act of 2008.” HB 2094 also reinstates the cause of action and all the prior case law of the SWA that was repealed in 1995. A study in 1998 showed that nearly $300 million in insurance liability and related legal costs were saved with the repeal of the SWA.
Chamber members must contact their State Representative and ask them to vote “NO” on HB 2094. Bullet points highlighting why we are opposed can be found at the Chamber’s grassroots action center.
Whitley Expresses Illinois Chamber’s Disappointment on Recent UR Decision by WC Commission
In a letter to Illinois Workers’ Compensation Commission Chairman Dennis Ruth, Illinois Chamber President Doug Whitley has expressed his concern and disappointment on behalf of Illinois employers with a recent decision on utilization review (UR) issued by one of the Workers’ Compensation Commission panels. The Vaupel v. Ingersoll Machine Tools decision (Vaupel v. Ingersoll Machine Tools, 06 WC 25877, 08 IWCC 130, February 1, 2008) was a dispute over whether the claimant needed surgery to a wrist which was recommended by his treating doctor.
Ingersoll used the 2005 changes to the law that allows for utilization review of a prospective medical service to determine the reasonableness and medical necessity of the surgery. Utilization review resulted in denial by both the generalist and the specialist in hand care and treatment. The Arbitrator noted in his decision that one of the reviewing physicians stated, “The case notes suggest that the claimant does not have ulnar positive findings, does not have ulnar impaction, and does not have leakage of the TFC although there may be a very pinpoint lesion…further medical clarification is needed regarding the medical necessity of surgery.”
The Commission panel consisting of Commissioner Barbara Sherman, Commissioner Youlaine Dauphin and Commissioner Kevin Lamborn overturned the decision of the Arbitrator on a 2-1 vote. Management Commissioner Kevin Lamborn dissented indicating that the utilization review process was properly followed and that the Arbitrator had correctly interpreted the intent of the statute.
Whitley noted,” The “Labor” and “Public” Commissioners by relying on the treating physician without explanation has severely undermined the ability of the employer to assure quality care is provided to injured workers. Treating providers are not infallible and there should not be a presumption in favor of the treating doctor's opinion. The medical evidence and opinions should be considered impartially, with no presumption.
Utilization review is a process that is the normal course of practice in the group health arena. The URAC standards that are required for utilization review allow for appropriate appeals by the treating physician and are designed to help determine the best course of treatment for the injured worker. The Chamber’s goal of bringing utilization review to Illinois’ workers’ compensation system in the 2005 amendments to our law was to help weed out unnecessary services and to bring the most effective care to injured workers. In turn, employer costs for medical care for workers’ compensation also would be tempered as a result of greater review.”
“We also understand that the use of a utilization review process is not always perfect. If the URAC process was not followed, if the decision was not based upon national standards of care, peer reviewed national guidelines, or on evidence-based medicine, we would better understand a decision to agree with the treating doctor. It is our understanding however and our read of the Commission decision that the employer did everything within the intent of Section 8.7 of the Act in attempting to provide the best course of treatment given the reasonable and necessity standards of the law.
These are the kind of decisions that puts Illinois decades behind other states when it comes to dealing with workers’ compensation disputes. It undermines the 2005 agreement to address not only the cost of workers’ compensation medical services but to advance the care injured workers deserve,” wrote Whitley.
Whitley pointed out, “These are the kind of decisions that keep Illinois decades behind other states when it comes to dealing with workers’ compensation disputes. It undermines the 2005 agreement to address not only the cost of workers’ compensation medical services but to advance the care injured workers deserve.
As the Commission reviews these types of cases in the future, we urge the arbitrators and commissioners to keep in perspective that the intent of the employer community to add utilization review to the law in 2005 was to bring a viable process that will enhance care and outcomes for injured workers, eliminate unnecessary and unreasonable treatments and bring more cost-effectiveness to Illinois employers paying for medical services under the law.”
For a copy of the letter, contact Jay Shattuck, Employment Law Council Executive Director.
IDES Analysis Indicates Trust Fund Balance $2 Billion Ahead of Projections
In 2003 when the Unemployment Insurance Trust Fund was deep in the red, The Illinois Chamber, other business representatives and labor forged an agreement that raised employer UI taxes and reduced UI benefits. Five years later, the UI Trust Fund is over $2 billion ahead of where it was projected to be. In a report released last month to the UI Advisory Board, the Illinois Department of Employment Security (IDES) indicated, “Two-thirds of the way through the original 6-year forecast horizon for the 2003 Agreed Bill, the system has performed significantly better than expected due primarily to an economy that improved sooner and at a stronger pace than what the experts were predicting back in 2003.
Under the 2003 economic assumptions, the Agreed Bill was expected to produce a December 31, 2007 UTF balance that was approximately $277 million in debt. In reality, the improving economy led to a 2007 year-end positive UTF balance of $1.802 billion with no remaining debt.”
The IDES report also stated, “Looking ahead, assuming annual Illinois unemployment rates of 5.3% to 5.4%, the original, relatively modest goal of a December 31, 2009 UTF balance of $0 would be surpassed by $1.3 billion. However, year-end UTF balances are projected to have peaked in 2007 and
decline each subsequent year to a 2010 year-end balance of approximately $0.7 billion.”
Contact Jay Shattuck for a copy of the IDES report.
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