In 2011, the Illinois Workers’ Compensation Act was significantly revised. While all of the changes are worth a thorough review, this article will summarize some of the major reforms, which have the greatest significance to the construction industry.
There are often disputes between an employer and its employee as to what constitutes reasonable and necessary treatment, especially for common construction injuries such as lumbar or shoulder conditions. The new act benefits employers by providing more structure for utilization reviews, which will now be overseen by the Department of Insurance. Utilization reviews allow employers to review treatment to determine excessiveness. If an employer requests this process, an injured employee’s medical provider must provide substantive reports of the employee’s clinical information to assist in making decisions regarding future requests for treatment. Medical professionals, who will conduct these reviews, must be available in person, or be available for deposition at the employer’s expense. The review process is based upon agreed treatment guidelines, which can be used in similar cases. Should a utilization review process deem that treatment has been excessive for the injured employee, an employer may deny paying for such treatment. Then, the injured employee must present proof that the treatment is reasonable and required given his or her condition. The new provision further provides that an employee’s medical provider may not be able to bill for some services if the guidelines are not followed. Also, the commission is now required to consider the medical professional’s findings made in the utilization review when making its final decision.
Another substantive change to the Illinois Workers’ Compensation Act involves an injured employee’s choice of doctor. Employees are no longer allowed to choose any doctor they wish. The 2011 changes provide that an employer (or their insurance company) may now use a preferred provider network. This network would be approved by the Illinois Department of Insurance. Injured employees would be incentivized to choose a medical provider within the network. Medical services provided outside of the network would not be reimbursed. If an in-network medical provider is chosen, that choice will constitute the injured employee’s first choice of provider. The use of these networks is intended to reduce costs and streamline claimant treatment, both of which are important to construction employers and a project’s bottom line.
There are also some changes in the revised act that address an employer’s defense of intoxication. It should be noted initially that as defined under the Illinois Workers’ Compensation Act, intoxication can be achieved through the use of alcohol or any other drug. Under the new law, a blood alcohol level of 0.08% or greater constitutes a rebuttable presumption that the employee was intoxicated at the time of injury. Similarly, any level of unlawful use of controlled substance also constitutes a rebuttable presumption that the employee was intoxicated. Refusing to submit to drug and alcohol testing results in the same rebuttable presumption. Urine, blood, and breath tests are admissible for determining whether any sort of intoxication was the proximate cause of the employee’s injury or whether it constituted a departure from employment. If either is found, the employee will not be entitled to compensation.
Wage differentials also come into play in the construction industry when an injured worker subsequently takes a lower-paying job as a result of his injury. For example, if they are unable to return to their prior employment, the injured employee will no longer be entitled to be paid the wage differential for the remainder of his or her life. The new act requires that the injured employee would only be entitled to such a differential until age 67 or five years from the date that the award is made final, whichever occurs later.
The determination of what constitutes a permanent partial disability under the act was also considered in the 2011 revisions. Now, the American Medical Association’s Guide for the Evaluation of Permanent Impairment is to be consulted in making this determination. The guide clearly defines the criteria utilized to establish the nature and extent of permanent partial disabilities. The commission will use the guide to determine an injured employee’s permanent partial disability, but will also consider other factors, such as the employee’s treatment records and details surrounding his or her condition at the time of the injury.
While the above changes to the Illinois Workers’ Compensation Act are just a few of the significant reforms in 2011, it is evident the new act warrants notice by both construction employers and their insurance providers. When injuries occur on the job site, the financial impact cannot be underestimated. Many of the reforms promote more cost-effective treatment for injured employees and allow employers to maintain more control over the claim process.