Workers Compensation CLE

Transcription

1 Workers Compensation CLE Medical Burden of Proof & Payment of Medical Bills Peoria County Bar Association Spalding Pastoral Center February 15, 2014 John Kamin Kate Carter 227 NE Jefferson Peoria, Illinois T: F:

2 Overview of Presentation Medical Burden of Proof I. Burden of Proof II. III. Commission Findings Tools for Establishing or Challenging Medical i. Independent Medical Examinations ii. Utilization Reviews iii. AMA Ratings IV. Independent Medical Examinations ( IME ) V. Utilization Reviews ( UR ) VI. VII. AMA Ratings Case Notes Medical Testimony Before the Commission Payment of Medical Bills VIII. IX. Prospective Medical Bills Payment of Medical Bills X. Penalties XI. XII. XIII. XIV. XV. Prohibition on Balance Billing Liens on Workers Compensation Awards Subrogation Credits Collateral source Rule 2 P a g e

3 I. Burden of Proof a. The workers compensation claimant bears the burden of proving, by a preponderance of the evidence, an entitlement to an award of medical expenses. b. This burden includes a showing that: i. Medical services are necessary; and ii. Expenses were reasonable to cure or relieve the effects of the claimant s injury. II. Commission Findings a. It is the function of the Commission to decide questions of fact, judge the credibility of witnesses, and resolve conflicting medical evidence. i. R & D Thiel v. IWCC, 398 Ill.App.3d 858, (1 st Dist. 2010) b. Questions of Fact for the Commission: i. Whether a causal relationship exists between a claimant s employment and his injury; ii. The extent of a claimant s disability; and iii. The reasonableness and necessity of medical expenses. III. Establishing or Challenging Medical a. Three important tools: i. Independent Medical Examinations 1. Address causation, work restrictions, and treatment recommendations ii. Utilization Reviews 1. Address the propriety and frequency of treatment iii. AMA Ratings 1. Address permanent disability awards b. Each of the above tools serves a different purpose and goal. Proper use of these tools is important for effective representation of your client. IV. Independent Medical Examinations ( IME ) 820 ILCS 305/12 a. Section 12 of the Illinois Workers Compensation Act grants employers the right to have an injured worker examined by a physician of the employer s choosing. b. Purpose of an IME i. To determine the nature, extent, and probable duration of the injury received by an employee and the amount of compensation which may be due to the employee. c. IME Procedure i. The IME must be at a time and place reasonably convenient to the employee. 3 P a g e

4 ii. The employer must pay for all costs of the IME, including any wage loss and reimbursement for travel and meals. iii. Employee Refusal to Submit to IME 1. If the employee refuses to submit to an examination, the employer may temporarily suspend the employee s benefits until an exam takes place. iv. IME Notice Requirement 1. The IME physician must give the employee and the employer the examiner s report as soon as practicable, but not later than 48 hours before the time the case is set for hearing. a. Refusal of the physician to provide such a report will bar the physician from testifying at the hearing. 2. The purpose of this notice requirement is to prevent one party from springing surprise medical testimony on the other party. a. Mulligan v. IWCC, 408 Ill.App.3d 205, 219 (1 st Dist. 2011) d. Case Notes i. Newlon-Becker v. State of Illinois; Jack Mabley Developmental Center, 12 IWCC Rule: The Petrillo doctrine does not apply to Section 12 examining doctors who have previously treated the claimant for unrelated conditions. 2. The arbitrator struck the IME physician s report and testimony from the record as violations of the Petrillo doctrine where the doctor had previously treated the claimant for unrelated conditions. The Commission reversed, finding that the Petrillo doctrine did not apply. a. Petrillo held that ex parte communications between an injured worker s healthcare providers and the employer or their legal representative are prohibited. It applies to treating physicians. 3. The Commission found that the IME physician was not a physician treating the claimant for her injuries related to this workers compensation claim. His treatment of the claimant was limited to conditions occurring years prior to the claim and he testified that he had no recollection of having treated claimant, nor did he review any prior medical records in preparing his Section 12 report. 4. Declining to interpret the Petrillo doctrine as encompassing every doctor with whom a claimant has ever treated, the Commission held that the doctrine applies to treating physicians who treat the claimant s work injuries relevant to the workers compensation claim. ii. Napoletano v. Rehabilitation Institute of Chicago, 12 IWCC P a g e

5 1. There is no prohibition on a Section 12 doctor from questioning the claimant about his medical history. 2. Further, there is no statutory provision or case law suggesting that an attorney must be present during a Section 12 examination or that a Section 12 examination must be completed in the presence of a court reporter. iii. Butler v. Roadway Express, 11 IWCC Claimants are not entitled to reimbursement of lost wages for traveling companions while traveling to and from a Section 12 examination. 2. Section 12 only contemplates a claimant s expenses while traveling to and from a medical examination. iv. Wright v. Alpha School Bus, 11 IWCC Section 12 requires that the defendant notify the claimant of the requested IME and simultaneously provide pre-payment of sufficient money for travel and expenses associated with the exam. 2. The defendant s statement in its notification of the examination that it will provide the claimant with travel expenses at the time of the examination does not satisfy the employer s statutory obligations. 3. Where a defendant fails to provide the claimant with travel expense money, the claimant is not required to attend the examination. V. Utilization Review ( UR ) 820 ILCS 305/8.7 a. In addition to IME s, employers have the right to a Utilization Review of an employee s medical care to determine the ongoing need for care. i. The review is meant as an evaluation of the appropriateness of the level and quality of health care services, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. 820 ILCS 305/8.7 b. Purpose of Utilization Review i. Utilization Review is intended to reduce medical expenses in workers compensation cases by addressing the possibility that medical providers will circumvent the limitations in charges provided in the fee schedule by increasing the frequency and type of treatment. c. Three Types of Utilization Reviews i. Prospective (favored) 1. Used to determine whether the recommended treatment is appropriate ii. Current 5 P a g e

6 1. Used to assess ongoing treatment; second opinions; discharge planning iii. Retrospective (least favored) 1. Where retrospective utilization review takes place, the medical information reviewed must be the same information the treating physician had available at the time the decision was made d. UR Procedure i. If an employer chooses to conduct a utilization review, it must use a utilization review program that is registered with the Illinois Department of Insurance. ii. Upon receipt of written notice that the employer wishes to invoke the utilization review process, the provider of medical services must submit to the utilization review, following all procedural guidelines. 1. Providers who fail to make reasonable efforts to provide timely and complete reports of clinical information and otherwise comply may not be allowed to bill the employee or the employer for service provided. iii. Under a utilization review, the medical record s underlying proposed treatment is reviewed by a medical provider of similar qualifications and credentials. If the treatment is certified, the utilization review ends and the treatment proceeds. iv. If the treatment is denied, the claimant and/or the provider may appeal to a medical provider of similar qualifications and credentials. 1. The medical professional responsible for review in the final stage of utilization review must be available for interview or deposition. a. This may be done by remote electronic means. v. Once a utilization review has been completed, an employer may only deny payment or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program. e. UR as Evidence Before the Commission i. The Commission will consider the utilization review finding, along with all other evidence, when determining the reasonableness and necessity of medical bills or treatment. 1. Case Note: a. Urban v. Dominick s, 11 IWCC 1025 i. Where a UR physician repeatedly fails to review records from the treating doctors, the fact finder will likely not rely on the results of the reviews. f. Employer Denial of Payment Following UR i. If an employer follows all standards when refusing to pay or authorize treatment, a rebuttable presumption arises that the employer should not be assessed penalties. 6 P a g e

7 ii. Where an employer denies payment, the employee has the burden of proof to show by a preponderance of evidence that a variance from the standard of care used by the person/entity performing the utilization review is reasonably required to cure or relieve the effects of his or her injury. g. Limitations of UR i. The reviewer only looks at the record, not the actual petitioner. ii. The reviewer may not comment as to causation. iii. The reviewer is generally not local, possibly necessitating remote depositions. iv. The review is based on a national standard of care as opposed to a local standard of care. v. Conclusions of UR are not dispositive as the reasonableness and necessity of medical treatment. Rather, a UR will be considered by the Commission along with other evidence. h. Case Note i. Solis v. Hospitality Staffing Solutions, 11 IWCC Rule: Illinois law does not recognize a presumption in favor of evidence-based medical treatment guidelines. Therefore, URs originating from evidence-based guidelines are not entitled to greater weight than other medical evidence. URs will be considered in the same manner as all other evidence. 2. Claimant suffered lumbar disc herniation and was prescribed MRI and EMG studies, medications, chiropractic care, and PT. The arbitrator held that the claimant was entitled to benefits, including prospective medical care consisting of conservative treatment and injection therapy. 3. The arbitrator noted that the defendant provided utilization reviews by two California doctors and the evidence deposition of one of them. The defendant argued that the opinions of the utilization reviewers originated from evidence-based guidelines and should therefore be afforded greater weight. 4. The California legislature has established a presumption of correctness of therapies in California workers comp claims based upon evidence-based medical treatment guidelines. In Illinois however, Section 8.7 of the IWCA provides that URs will be considered along with all other evidence and in the same manner as all other evidence, in the determination of reasonableness and necessity of medical bills and treatment. VI. AMA Rating 820 ILCS 305/8.1b a. With the 2011 amendments, Section 8 of the IWCA was amended to provide new criteria for the determination of PPD. For injuries that occur on or after 7 P a g e

8 September 1, 2011, AMA impairment ratings shall be considered as one factor in the determination of PPD. b. Impairment Report i. A physician licensed to practice medicine in all of its branches preparing an Impairment Report shall report the level of impairment in writing, according to the most current edition of the AMA s Guides to the Evaluation of Permanent Impairment. ii. The report should include an evaluation of impairment including measurements of : 1. Loss of range of motion; 2. Loss of strength; 3. Measured atrophy of tissue mass consistent with the injury; and 4. Any other measurements that establish the nature and extent of the impairment. c. Commission Determination of PPD i. In determining the level of permanent partial disability, the Commission shall base it determination on the following factors: 1. The reported level of impairment (i.e. the AMA rating) 2. Occupation of the injured employee 3. Age of the employee at the time of the injury 4. Employee s future earning capacity 5. Evidence of disability corroborated by the treating medical records VII. Case Notes: Medical Testimony Before the Commission a. IME vs. Treating Physician i. Davidson v. Southern Wine & Spirits of Illinois, 13 IWCC Rule: Where the employer s examining doctor has a more accurate understanding than the treater of the claimant s work activities and lifting requirements, the fact finder should rely on the IME s doctor s testimony regarding the reasonableness and necessity of the claimant s PT and work hardening sessions. 2. The claimant injured his left leg while delivering cases of alcoholic beverages. He was diagnosed with a left thigh sprain or strain, prescribed PT, and issued work restrictions to avoid kneeling, squatting, jumping, running, climbing ladders, and prolonged standing. After 17 PT sessions, the claimant was discharged and instructed to begin work hardening, consisting of intense therapy for five days a week for four weeks. The treater testified that he ordered work hardening because of the heavy nature of the claimant s work. 8 P a g e

9 3. The defendant s examining doctor testified that work hardening was not appropriate, and that the claimant s condition did not warrant more than the standard protocol. 4. The Commission found the testimony of the examining doctor more persuasive than that of the treating doctor. The examining doctor had a better idea of the claimant s work activities, having been provided a description of his responsibilities and having viewed a video of his work activities. The treating doctor, however, was not provided with such information and was unaware that the claimant was not required to lift more than 50 pounds. ii. Clarke v. Continental Tire North America, 13 IWCC Rule: In denying benefits, the Commission relied on testimony of the defendant s examining doctor over that of the treating doctor and the claimant s expert, to find insufficient evidence of a causal link between the claimant s employment and his alleged repetitive trauma. 2. Claimant sustained left shoulder impingement syndrome in 2008 and claimed that, due to his repetitive duties as a trucker, his condition was aggravated, necessitating surgery. The treating doctor noted that the claimant s job duties were likely accumulative in nature, but did not specifically proffer a causation opinion. 3. A section 12 examining doctor reviewed the operative reports and medical records, visited the defendant s workplace, observed the work duties involved, reviewed a written job description, and discussed the job in depth with the claimant. He opined that the claimant had bursitis, which is consistent with his prior surgery, but not caused or aggravated by his work with the defendant. The claimant s expert reviewed the medical records and opined that his job duties would have aggravated his prior shoulder problems and that the surgery was appropriate. He did not treat, examine, or interview the claimant. 4. The arbitrator found the examining doctor s opinion was based on a far more accurate and complete viewing of the situation, and thus found insufficient proof to sustain a compensable repetitive condition. b. Causation/Weight of Medical Testimony i. Lear v. Steak N Shake Inc., IWCC, 2012 Ill. App. (4 th ), WC 1. Rule: The Commission is not bound by unrebutted medical testimony. While the sole medical opinion may not be arbitrarily rejected, it is not binding on the Commission merely because it is the sole medical opinion. 9 P a g e

10 2. The claimant slipped and fell on a wet floor while carrying glass ketchup bottles at work, sustaining lacerations to her hand. She alleged that her panic and anxiety disorder with agoraphobia was causally connected to this incident. 3. The Commission found the employer s expert not credible and gave his testimony no weight. The claimant argued that because the only remaining expert testimony on the issue of causation was that of her expert, who found a causal connection, the Commission erred in finding no causation. 4. The Circuit Court and the Appellate Court affirmed the Commission and held that the Commission, in its discretion, is not bound by unrebutted medical testimony. c. Medical Testimony: Commission Plays Lawyer i. Redcloud v. Village of Ullin, 12 IWCC Rule: Where the claimant s and defendant s testifying doctors provide reasonable, but conflicting testimony regarding whether surgery should be performed, the fact finder may request an evaluation by a neutral physician. 2. The claimant fell and injured his back. The claimant s treating physician recommended a two-level fusion at L2-L3 and L3-L4. The defendant s Section 12 examiner testified that while it would be reasonable to fuse the L2-L3 level, he would probably not operate because he would not be confident that it would help. He further testified that he would not recommend surgery at the L3-L4 level. 3. The arbitrator ordered the defendant to authorize and pay for a lumbar fusion at L2-L3. Based on the difference in opinion between the treating doctor and the Section 12 examiner, the Commission vacated the award and remanded for evaluation by a neutral surgeon. VIII. Prospective Medical Bills a. The Commission may order an employer to authorize prospective medical care, upon findings of: i. A causal connection between the claimant s current condition and their injuries; and ii. That the recommended treatment is reasonable and necessary to treat the injuries. 1. Plantation Mfg. Co. v. Industrial Commission, 294 Ill.App.3d 705 (2d Dist. 1997) b. Case Notes: i. Fesi v. Carol Stream Fire Protection District, 13 IWCC P a g e

11 1. The Commission ordered an employer to authorize and pay for a trial implant of a spinal cord stimulator, where the claimant had a 50% chance of eliminating all pain if the implant was successful. Furthermore, the Commission held that if the implant was successful, the employer must pay for a permanent implant. ii. Krug v. El Paso Fire Protection District, 13 IWCC The Commission held that the possibility of a future knee replacement at an unknown date is not a valid basis to award prospective medical care. However, the Commission affirmed the arbitrator s award of 25% loss of use of the claimant s leg, which itself factored in the possibility of future knee surgery. iii. Graham v. Cord Moving and Storage, 13 IWCC Rule: An insufficient course of conservative treatment may prevent authorization for prospective medical treatment. 2. Where a claimant had only participated in 11 physical therapy sessions, the Commission held that authorization for the claimant s fusion surgery was premature because he had not undergone sufficient physical therapy sessions. 3. The claimant filed an application seeking authorization for back surgery, payment of medical bills, and payment of TTD. The arbitrator awarded the treatment sought; however, the Commission modified the award of prospective medical treatment. The Commission held that surgery was not reasonable or necessary treatment at that time. Although the treating surgeon noted that the claimant failed conservative treatment, the Commission found the claimant s conservative treatment only included 11 PT sessions, and therefore found surgical intervention premature. IX. Payment of Medical Bills 820 ILCS 305/8 a. Amount i. The employer must pay: 1. Any rate which the employer and the provider have negotiated; or 2. The lesser of: a. The Provider s actual charges, or b. According to a fee schedule. b. Fee Schedule ILCS 305/8.2 i. The amounts provided in the schedule vary according to geographic region. 1. Effective with the 2011 amendments, the fee schedule is grouped into separate geographic regions 4 regions for non-hospital care and 14 regions for hospital care. ii. CPT Codes 11 P a g e

12 1. Medical services are described in the fee schedule according to CPT codes. iii. The amount provided in the fee schedule for each service is based upon a calculation done by the Commission, which is based upon a percentage of a certain percentile of actual amounts charged within certain geographic regions. 1. To determine the actual amount an employer must pay according to the fee schedule, the employer must have the following information: a. the year of treatment, b. the CPT code, c. the type of service provided, and d. the location of the services. iv. Services Not Covered by the Fee Schedule ILCS 305/8.2(a-2) 1. Effective September 1, 2011, for services not covered by the fee schedule, medical providers may recover 53.2% of the actual amount charged. v. Out-of-State Providers ILCS 305/8.2(a) 1. Out-of-State providers are reimbursed at the lesser of that state s fee schedule amount or the fee schedule amount for the region in which the employee resides. vi. Annual Adjustment 1. The charges are adjusted on an annual basis by the Consumer Price Index. vii. The fee schedule can be found online on the IWCC Website: c. Mechanics of Medical Bill Payment ILCS 305/8.2(d) i. Once an employee seeks treatment from a medical provider and that provider is notified that treatment or services are being sought for a work-related injury, the medical provider should bill the employer directly for services rendered. 1. The employee must provide the contact information of his or her employer to the medical provider. ii. Submission of Bills to the Employer ILCS 305/8.2(d)(1)(2) 1. In its bill to the employer, the provider must supply the employer with substantially all of the required data elements necessary to adjudicate bills. a. Such data includes the date of treatment, the appropriate CPT code for the treatment and/or services provided, the location of services provided, and the nature of the services provided. iii. Employer Payment ILCS 305/8.2(d)(1) 1. Where the employer does not dispute the bill, the employer must pay the provider within 30 days of receipt of the bill. 12 P a g e

13 X. Penalties 2. Where there is no negotiated rate, the employer must adjust the medical bills it receives from the provider according to the fee schedule to determine the appropriate due the amount charged or the fee schedule amount. a. Springfield Urban League v. IWCC, 2013 IL App (4th) WC iv. Employer Non-Payment ILCS 305/8.2(d)(2) 1. If the claim does not contain all of the required data, or the claim is denied for another reason, the employer must provide written notice to the provider explaining its basis for the denial, or request for other necessary information within 30 days. 2. Provider Interest ILCS 305/8.2(d)(3) a. If the employer fails to pay a bill which contained all of the necessary data, within the required 30 days, the provider is entitled to interest payments at a rate of 1% per month, which shall be due within 30 days after payment of the original bill. 3. Case Notes: Employer Dispute of Medical Bill a. Koneck v. Matrix Exhibits, 11 IWCC 1121 i. A medical bill is considered prima facie reasonable when liability is not at issue, evidence is admitted that a medical bill was for treatment rendered, and the medical bill has been paid. ii. A respondent can rebut the prima face reasonableness by presenting sufficient evidence which casts suspicion upon the transaction. b. Darling v. Maryville Academy, 12 IWCC 1377 i. Where pain medication is prescribed to alleviate a claimant s symptoms and it provides some benefits, the claimant should receive reimbursement for such medical expenses. ii. The claimant should also receive reimbursement for diagnostic tests, where the tests are administered to better diagnose the claimant s condition and to determine a more beneficial treatment plan. c. Martinez v. DSC Logistics, 11 IWCC 0927 i. Where a claimant exhibits no pain, physical therapy sessions are unreasonable and unnecessary, and thus not compensable. 13 P a g e

14 a. Where an employer fails to pay medical bills in a timely fashion, the Commission may award penalties. b. Three types of penalties: i. Section 19(l) provides for mandatory penalties for delay or non-payment of compensation. ii. Section 19(k) provides discretionary penalties for unreasonable delay in payment. iii. Section 16 provides for the payment of attorneys fees for unreasonable delay. c. 19(l) Penalty ILCS 305/19(l) i. Basis for Penalties 1. Where the employer fails to timely pay, if an employee makes a written demand for payment, the employer will have 14 days after the expiration of the 30-day prompt payment period to explain in writing the reason for the delay. a. A delay in payment of 14 days or more creates a rebuttable presumption of unreasonable delay. b. Such an award is mandatory. ii. Amount of Penalties 1. Where the employer fails to demonstrate good and just cause for its failure to pay, the employee is entitled to $30 per day in additional compensation for each day that the benefits have been withheld or refused, not to exceed $10,000. d. 19(k) Penalty ILCS 305/19(k) i. Basis for Penalties 1. Where an employer unreasonably or vexatiously delays payment or intentionally underpays compensation, or institutes proceedings which do not present a real controversy, but are merely frivolous or for delay, a court may award 19(k) penalties. 2. The standard for awarding 19(k) penalties is high, requiring unreasonable and vexatious conduct. 3. An award based upon a 19(k) penalty is discretionary. ii. Amount of Penalties 1. The Commission may award compensation equal to 50% of the amount payable at the time of such award, in addition to that otherwise payable under the Act. a. The assessment of penalties against an employer pursuant to 19(k) is limited to 50% of the fee schedule amount payable at the time of the arbitrator s award, rather than 50% of the total outstanding medical bills. i. Russell v. City of Chicago, 13 IWCC 0273 b. No cap on 19(k) penalties i. There is no cap on 19(k) penalties, unlike the $10,000 limit for 19(l) penalties. 14 P a g e

15 iii. Case Note: Miller v. State of Illinois; Menard Correctional Center, 21 ILWCLB 22 (IWCC 2012) 1. 19(k) penalties should not be assessed simply based on an employer s decision to defend the claim. a. It is within the realm of proper advocacy for a defendant to require a claimant to establish that the job activities aggravate the claimant s particular condition. e. Section 16 Penalty ILCS 305/16 i. Basis of Penalty: Same as 19(k) 1. The commission may assess all or any part of the attorneys fees and costs against an employer for delay or unfairness towards an employee in the adjustment, settlement or payment of benefits, or unreasonable or vexatious delay, intentional underpayment of compensation benefits, or presentation of frivolous defenses which do not present a real controversy. ii. Amount 1. Attorneys fees, in an amount up to 20% of the amount recovered by the claimant, may be awarded f. Additional Penalty Considerations i. Claims in support of penalties must be presented to the arbitrator in the first instance. ii. The Commission must then review the propriety and amount of the penalty and/or attorneys fee award. iii. Claims not brought before the arbitrator cannot be heard by the Commission. 1. McMahan v. Industrial Commission, 183 Ill.2d 499 (1998). g. Prospective Medical Treatment i. Penalties will not be assessed for failure to authorize prospective medical treatment 1. Hollywood Casino-Aurora, Inc. v. IWCC, 2012 IL App (2d) WC a. Rule: Section 19(k) penalties may not be assessed for an employer s delay in authorizing prospective medical treatment. Section 19(k) only addresses delay in payment and underpayment of compensation. b. The arbitrator awarded temporary, permanent, and medical benefits, including the cost of a spinal cord stimulator, to the claimant after she suffered a crushing injury to her right foot during the course of her employment. The claimant s doctor wrote a letter to the employer s carrier that the stimulator s battery would need to be replaced. The carrier received the letter on 1/9/07, but authorization was not given for the battery replacement surgery until 8/27/ P a g e

16 XI. Prohibition on Balance Billing ILCS 305/8.2 c. The Commission found that the defendant had unreasonably delayed authorization for the surgery and awarded $40,750 in penalties under Section 19(k). d. The Appellate Court affirmed the Circuit Court s reversal of the Commission decision, and held that the Commission lacked statutory authority to impose penalties for delay in authorizing treatment. a. Section 8.2 of the Act prohibits the practice of balance billing. b. Balance Billing refers to an attempt by a medical provider to get an injured worker to pay: i. The unpaid balance of a medical bill, or ii. For services that were found by the Commission to be unnecessary or excessive. c. Prohibited Practices: What is Balance Billing? i. Providers may not bill an employee for: 1. A non-disputed procedure, treatment, or service for an injury covered by the Act; 2. The difference between the provider s charges and the amount paid by the employer for a compensable injury; or 3. A medical service or treatment determined by the Commission to be excessive or unnecessary. d. Acceptable Practices: What is not Balance Billing? i. If the employee participates in a group health plan, the provider may submit a claim for services not paid by the employer to the group health plan. 1. The employee s responsibility would then be limited to applicable deductibles, co-payments, or co-insurance. ii. If an employer notifies a provider that the employer does not consider the illness/injury to be compensable under the Act, the provider may seek payment for actual charges from the employee. iii. Further, if an employer notifies a provider that the employer will only pay a portion of the bill, the provider may seek payment for the remainder of the actual charges from the employee, up to the lesser of the actual charge, negotiated rate, or payment level set by the fee schedule. a. Practice Note: employers may offer hold harmless clauses to employees to avoid employee payments 1. However, once an employee notifies a provider that a workers compensation case is pending before the Commission to resolve a dispute over payment of such charges, the provider may not engage in collection efforts against the employee. iv. Statute of Limitations 16 P a g e

17 1. Any Statute of Limitations or Statute of Repose applicable to the provider s efforts to collect from the employee is tolled from the date the employee files the application with the Commission until the date that the provider is permitted to resume collection. v. Resumed collection 1. Reminders to Employee ILCS 305/8.2(e-15) a. When there is a case pending before the Commission regarding a dispute over payment of charges, a provider may send the employee reminders of the outstanding bill and ask for information about the case. b. If an employee fails to respond to a provider s inquiry as to the status of a case, the provider may, after 90 days of the date of the reminder, resume its collection efforts. 2. Final Award/Judgment/Settlement ILCS 305/8.2(e-20) a. Upon a final award or judgment by an Arbitrator or the Commission, or a settlement agreed to by the employer and employee, a provider may resume collection efforts against the employee for outstanding charges, including, if applicable, the interest of 1% per month on bills unpaid 30 days after receipt. 3. Payment a. For compensable injuries, the provider may not require payment greater than the lesser of the actual charge or the amount set by the fee schedule. b. Injuries deemed non-compensable are the responsibility of the employee, unless a provider and employee have otherwise agreed in writing. c. Services not covered or not compensable under the Act are not subject to the fee schedule. i. Tiburzi Chiropractic v. Kline, 2013 IL App (4 th ) XII. Liens on Workers Compensation Awards ILCS 305/21 a. Payments, claims, awards and decisions under the Workers Compensation Act are not assignable, nor are they subject to any lien, attachment, or garnishment. b. Except: i. TTD awards are subject to Child & Spousal support; Medicare & Medicaid Liens c. Income Withholding Support Act ILCS 28/20 i. The Income Withholding Support Act requires that, for child and spousal support, an income withholding notice be prepared and served immediately upon any payor of the support obligor, unless a court approved written agreement is signed by both parties. 17 P a g e

18 XIII. Subrogation a. Subrogation agreements, which require the repayment of medical expenses by the employee should he be found entitled to any recovery of workers compensation, are enforceable. i. See Swanson v. G.M. Sipes Const. Co., 05 IWCC 153 XIV. Credits ILCS 305/8(j) a. Section 8(j) of the Act affords the employer a credit for payments made to the claimant under group health and disability policies, as well as a credit for overpayments of workers compensation benefits from future payments. i. If the injured employee receives benefits, including medical, surgical, or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under the WCA, then such amounts will be credited to or against any compensation payment. ii. Such credits may only be applied where an employee received workers compensation benefits or was found entitled to receive such benefits. iii. This section does not apply to payments which would have been made regardless of whether there was an injury under the Act. iv. The amount of credit should be determined by the net amount of payment which the employee actually received, rather than the gross amount paid. b. Credits & Subrogation i. An 8(j) credit is not available to an employer where the worker is required to sign a subrogation agreement prior to receiving medical benefits. 1. In Engleking v. Ashland Chemical, the Commission ordered the employer to pay the claimant those medical expenses previously paid by the claimant s union health and welfare fund at the fee schedule rate. a. Engleking v. Ashland Chemical, 12 IWCC 1082 XV. Collateral Source Rule a. Not applicable in Workers Compensation Cases i. The Collateral Source Rule applicable in civil actions does not apply in Workers Compensation cases. 1. Tower Automotive v. IWCC, 407 Ill.App.3d 427 (1 st Dist. 2011) 18 P a g e

19 b. An employer is entitled to a reduction in the amount which it is required to pay for an employee s medical expenses by reason of discounts or write-offs of a medical providers charges. c. This rule is consistent with Section 8(a) of the Act, which provides that employers must pay the negotiated rate or the lesser of the health care provider s actual charges for medical services provided to an injured employee. 19 P a g e