August 28, 2018
To
the Honorable Members of
The
Illinois Senate
100th
General Assembly:
Today I return Senate Bill 904 with specific
recommendations for change.
SB 904, as approved by the
General Assembly, proposes changes to the Workers’ Compensation Act to: 1)
provide to medical providers a mechanism for collection of the 1% per month
interest penalty provided by Section 8.2 of the Act; and 2) provide penalties
for the Department of Insurance enforcement of the electronic claims
transaction requirements under the Act.
This Administration has
advocated since taking office the need for reform of our workers’ compensation
system to provide relief to employers from the high costs of our system.
Unfortunately, the majorities in the General Assembly have sent to me
legislation that does not provide the changes needed to bring our workers’
compensation costs in line with other states. Failure to work with our business
community, legislators supporting reform, and my office to enact meaningful
reform has resulted in the maintaining of our high costs, which are driving
high wage jobs with good benefits out of our state.
SB 904 is not reform, does
nothing to assist injured workers and dramatically tips the balance in favor of
medical providers in a system where Illinois has the second highest medical fee
schedule in the country for overall professional services and the highest in
the country for major surgery services. Furthermore, SB 904 diminishes an
employer's ability to determine causation and whether an injury is
work-related.
A much more balanced approach
is necessary to meet the bill’s purpose and to reduce the friction in the
billing and payment of medical bills in our workers’ compensation system.
Rather than creating lengthy disputes in our court system, I propose a
procedure through the Illinois Workers’ Compensation Commission which would
result in more timely determinations of interest payments for all concerned.
Furthermore, this administration is dedicated to the proper enforcement of the
Insurance Code, and the Department of Insurance will be issuing guidance on
compliance with the relevant law.
Therefore, pursuant to
Section 9(e) of Article IV of the Illinois Constitution of 1970, I hereby
return Senate Bill 904, entitled “AN ACT concerning regulation,” with the
following specific recommendations for change:
On page 1 by replacing line 5
with:
“changing
Sections 8.2, 8.2a, 8.7 and 19 as follows:”; and
On page 8, line 2, by
inserting immediately after “(d)”:
“Upon
receipt of notice of injury, an employer or its designee shall provide to an
injured worker or an injured worker's medical provider a mailing address and an
electronic mail address to which medical bills should be sent.
A
medical provider shall submit its bill to the employer or insurer within 90
days of the date on which the services were provided to the injured worker.”;
and
On page 8, by replacing line
15 with:
“receipt of the
bills as long as the claim contains”; and
On page 8, by replacing line
18 with:
“(2) If the claim
does not contain substantially”; and
On page 8, by replacing line
24 with”:
“describing
any additional necessary data elements, to the required to adjudicate
the bill”; and
On page 8, by deleting line
26; and
On page 9, by replacing lines
1-26 with:
“Commission
shall adopt rules detailing the requirements for the explanation of benefits
required under this subsection.
(3)
In the case (i) of nonpayment to a provider within 30 days of receipt of
an undisputed the bill which contained substantially all of the
required data elements necessary to adjudicate the bill, (ii) of or
nonpayment to a provider of a an undisputed portion of such a
bill, or (iii) nonissuance to the provider of an explanation of benefits for
such a bill up to the lesser of the actual charge or the payment level
set by the Commission in the fee schedule established in this Section, the undisputed
bill, or the undisputed portion of the bill up to the lesser of the
actual charge, the negotiated rate, or the payment level set by the Commission
in the fee schedule established in this Section, shall incur interest at a
rate of 1% per month payable by the employer to the provider. Any
required interest payments shall be made by the employer or its insurer to
the provider not later than within 30 days after payment of the
bill.
(4)
If an employer or insurer has not paid interest on an undisputed medical bill
within 30 days after payment of the bill, a medical provider may file a
petition with the Commission to determine if interest is owed. Within 30 days
of receipt of the petition, the employer or its designee may file a response to
the petition. The Commission may hold a hearing and within 180 days of receipt
of the medical provider’s petition shall determine if interest is owed on the
bills. If interest is owed, the Commission will order the interest paid to the
provider.”; and
On page 10, by deleting lines
1 through 5; and
On page 14, by deleting lines
20 through 25; and
On page 15, by replacing
lines 1 through 10 with:
“(5)
Provide that the Department of Insurance shall impose an administrative fine if
it determines that an insurer has intentionally failed or demonstrates a
repeated pattern of failing to comply with the electronic claims acceptance and
response process. The amount of the administrative fine shall be no greater
than $1,000 per each violation but shall not exceed $10,000 for violations
found or determined during a calendar year.”; and
On page 16 by inserting
immediately after line 6 the following:
“(820
ILCS 305/8.7) Sec. 8.7. Utilization review programs.
(a)
As used in this Section: "Utilization review" means the evaluation of
proposed or provided health care services to determine the appropriateness of
both the level of health care services medically necessary and the quality of
health care services provided to a patient, including evaluation of their
efficiency, efficacy, and appropriateness of treatment, hospitalization, or
office visits based on medically accepted standards. The evaluation must be
accomplished by means of a system that identifies the utilization of health
care services based on standards of care of nationally recognized peer review
guidelines as well as nationally recognized treatment guidelines and
evidence-based medicine based upon standards as provided in this Act.
Utilization techniques may include prospective review, second opinions,
concurrent review, discharge planning, peer review, independent medical
examinations, and retrospective review (for purposes of this sentence,
retrospective review shall be applicable to services rendered on or after July
20, 2005). Nothing in this Section applies to prospective review of necessary
first aid or emergency treatment.
(b)
No person may conduct a utilization review program for workers' compensation
services in this State unless once every 2 years the person registers the
utilization review program with the Department of Insurance and certifies
compliance with the Workers' Compensation Utilization Management standards or
Health Utilization Management Standards of URAC sufficient to achieve URAC
accreditation or submits evidence of accreditation by URAC for its Workers'
Compensation Utilization Management Standards or Health Utilization Management
Standards. Nothing in this Act shall be construed to require an employer or
insurer or its subcontractors to become URAC accredited.
(c)
In addition, the Director of Insurance may certify alternative utilization
review standards of national accreditation organizations or entities in order
for plans to comply with this Section. Any alternative utilization review
standards shall meet or exceed those standards required under subsection (b).
(d)
This registration shall include submission of all of the following information
regarding utilization review program activities:
(1)
The name, address, and telephone number of the utilization review programs. (2)
The organization and governing structure of the utilization review programs.
(3) The number of lives for which utilization review is conducted by each
utilization review
program.
(4)
Hours of operation of each utilization review program.
(5)
Description of the grievance process for each utilization review program.
(6)
Number of covered lives for which utilization review was conducted for the
previous calendar year for each utilization review program.
(7)
Written policies and procedures for protecting confidential information
according to applicable State and federal laws for each utilization review
program.
(e) A
utilization review program shall have written procedures to ensure that
patient-specific information obtained during the process of utilization review
will be:
(1)
kept confidential in accordance with applicable State and federal laws; and
(2)
shared only with the employee, the employee's designee, and the employee's
health care provider, and those who are authorized by law to receive the
information. Summary data shall not be considered confidential if it does not
provide information to allow identification of individual patients or health
care providers.
Only
a health care professional may make determinations regarding the medical
necessity of health care services during the course of utilization review. When
making retrospective reviews, utilization review programs shall base reviews
solely on the medical information available to the attending physician or
ordering provider at the time the health care services were provided.
(f)
If the Department of Insurance finds that a utilization review program is not
in compliance with this Section, the Department shall issue a corrective action
plan and allow a reasonable amount of time for compliance with the plan. If the
utilization review program does not come into compliance, the Department may
issue a cease and desist order. Before issuing a cease and desist order under
this Section, the Department shall provide the utilization review program with
a written notice of the reasons for the order and allow a reasonable amount of
time to supply additional information demonstrating compliance with the
requirements of this Section and to request a hearing. The hearing notice shall
be sent by certified mail, return receipt requested, and the hearing shall be
conducted in accordance with the Illinois Administrative Procedure Act.
(g) A
utilization review program subject to a corrective action may continue to
conduct business until a final decision has been issued by the Department.
(h)
The Department of Insurance may by rule establish a registration fee for each
person conducting a utilization review program.
(i)
Upon receipt of written notice that the employer or the employer's agent or
insurer wishes to invoke the utilization review process, the provider of
medical, surgical, or hospital services shall submit to the utilization review,
following accredited procedural guidelines.
(1)
The provider shall make reasonable efforts to provide timely and complete
reports of clinical information needed to support a request for treatment. If
the provider fails to make such reasonable efforts, the charges for the
treatment or service may not be compensable nor collectible by the provider or
claimant from the employer, the employer's agent, or the employee. The
reporting obligations of providers shall not be unreasonable or unduly
burdensome.
(2)
Written notice of utilization review decisions, including the clinical
rationale for certification or non-certification and references to applicable
standards of care or evidence-based medical guidelines, shall be furnished to
the provider and employee.
(3)
An employer may only deny payment of 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 under this Section.
(4)
When a payment for medical services has been denied or not authorized by an
employer or when authorization for medical services is denied pursuant to
utilization review, the employee has the burden of proof to show by a
preponderance of the evidence that a variance from the standards of care used
by the person or entity performing the utilization review pursuant to
subsection (a) is reasonably required to cure or relieve the effects of his or
her injury.
(5)
The medical professional responsible for review in the final stage of
utilization review or appeal must be available in this State for interview or
deposition; or must be available for deposition by telephone, video conference,
or other remote electronic means. A medical professional who works or resides
in this State or outside of this State may comply with this requirement by
making himself or herself available for an interview or deposition in person or
by making himself or herself available by telephone, video conference, or other
remote electronic means. The remote interview or deposition shall be conducted
in a fair, open, and cost-effective manner. The expense of interview and the
deposition method shall be paid by the employer. The deponent shall be in the
presence of the officer administering the oath and recording the deposition,
unless otherwise agreed by the parties. Any exhibits or other demonstrative
evidence to be presented to the deponent by any party at the deposition shall
be provided to the officer administering the oath and all other parties within
a reasonable period of time prior to the deposition. Nothing shall prohibit any
party from being with the deponent during the deposition, at that party's
expense; provided, however, that a party attending a deposition shall give
written notice of that party's intention to appear at the deposition to all
other parties within a reasonable time prior to the deposition.
An
admissible utilization review shall be considered by the Commission, along with
all other evidence and in the same manner as all other evidence, and must be
addressed along with all other evidence in the determination of the
reasonableness and necessity of the medical bills or treatment. Nothing in this
Section shall be construed to diminish the rights of employees to reasonable
and necessary medical treatment or employee choice of health care provider
under Section 8(a) or the rights of employers to medical examinations under
Section 12.
(j)
When an employer denies payment of or refuses to authorize payment of first
aid, medical, surgical, or hospital services under Section 8(a) of this Act, if
that denial or refusal to authorize complies with a utilization review program
registered under this Section and complies with all other requirements of this
Section, then there shall be a rebuttable presumption that the employer shall
not be responsible for payment of additional compensation pursuant to Section
19(k) of this Act or interest penalties provided in Section 8.2 of this Act and
if that denial or refusal to authorize does not comply with a utilization
review program registered under this Section and does not comply with all other
requirements of this Section, then that will be considered by the Commission,
along with all other evidence and in the same manner as all other evidence, in
the determination of whether the employer may be responsible for the payment of
additional compensation pursuant to Section 19(k) of this Act or interest
penalties provided in Section 8.2 of this Act.
The
changes to this Section made by this amendatory Act of the 97th General
Assembly apply only to health care services provided or proposed to be provided
on or after September 1, 2011.
(820
ILCS 305/19) (from Ch. 48, par. 138.19)
Sec.
19. Any disputed questions of law or fact shall be determined as herein
provided.
(a)
It shall be the duty of the Commission upon notification that the parties have
failed to reach an agreement, to designate an Arbitrator.
1.
Whenever any claimant misconceives his remedy and files an application for
adjustment of claim under this Act and it is subsequently discovered, at any
time before final disposition of such cause, that the claim for disability or
death which was the basis for such application should properly have been made
under the Workers' Occupational Diseases Act, then the provisions of Section
19, paragraph (a-1) of the Workers' Occupational Diseases Act having reference
to such application shall apply.
2.
Whenever any claimant misconceives his remedy and files an application for
adjustment of claim under the Workers' Occupational Diseases Act and it is
subsequently discovered, at any time before final disposition of such cause
that the claim for injury or death which was the basis for such application
should properly have been made under this Act, then the application so filed
under the Workers' Occupational Diseases Act may be amended in form, substance
or both to assert claim for such disability or death under this Act and it
shall be deemed to have been so filed as amended on the date of the original filing
thereof, and such compensation may be awarded as is warranted by the whole
evidence pursuant to this Act. When such amendment is submitted, further or
additional evidence may be heard by the Arbitrator or Commission when deemed
necessary. Nothing in this Section contained shall be construed to be or permit
a waiver of any provisions of this Act with reference to notice but notice if
given shall be deemed to be a notice under the provisions of this Act if given
within the time required herein.
(b)
The Arbitrator shall make such inquiries and investigations as he or they shall
deem necessary and may examine and inspect all books, papers, records, places,
or premises relating to the questions in dispute and hear such proper evidence
as the parties may submit.
The
hearings before the Arbitrator shall be held in the vicinity where the injury
occurred after 10 days' notice of the time and place of such hearing shall have
been given to each of the parties or their attorneys of record.
The
Arbitrator may find that the disabling condition is temporary and has not yet
reached a permanent condition and may order the payment of compensation up to
the date of the hearing, which award shall be reviewable and enforceable in the
same manner as other awards, and in no instance be a bar to a further hearing
and determination of a further amount of temporary total compensation or of
compensation for permanent disability, but shall be conclusive as to all other
questions except the nature and extent of said disability.
The
decision of the Arbitrator shall be filed with the Commission which Commission
shall immediately send to each party or his attorney a copy of such decision,
together with a notification of the time when it was filed. As of the effective
date of this amendatory Act of the 94th General Assembly, all decisions of the
Arbitrator shall set forth in writing findings of fact and conclusions of law,
separately stated, if requested by either party. Unless a petition for review
is filed by either party within 30 days after the receipt by such party of the
copy of the decision and notification of time when filed, and unless such party
petitioning for a review shall within 35 days after the receipt by him of the
copy of the decision, file with the Commission either an agreed statement of
the facts appearing upon the hearing before the Arbitrator, or if such party
shall so elect a correct transcript of evidence of the proceedings at such
hearings, then the decision shall become the decision of the Commission and in
the absence of fraud shall be conclusive. The Petition for Review shall contain
a statement of the petitioning party's specific exceptions to the decision of
the arbitrator. The jurisdiction of the Commission to review the decision of
the arbitrator shall not be limited to the exceptions stated in the Petition
for Review. The Commission, or any member thereof, may grant further time not
exceeding 30 days, in which to file such agreed statement or transcript of
evidence. Such agreed statement of facts or correct transcript of evidence, as
the case may be, shall be authenticated by the signatures of the parties or
their attorneys, and in the event they do not agree as to the correctness of
the transcript of evidence it shall be authenticated by the signature of the
Arbitrator designated by the Commission.
Whether
the employee is working or not, if the employee is not receiving or has not
received medical, surgical, or hospital services or other services or
compensation as provided in paragraph (a) of Section 8, or compensation as
provided in paragraph (b) of Section 8, the employee may at any time petition
for an expedited hearing by an Arbitrator on the issue of whether or not he or
she is entitled to receive payment of the services or compensation. Provided
the employer continues to pay compensation pursuant to paragraph (b) of Section
8, the employer may at any time petition for an expedited hearing on the issue
of whether or not the employee is entitled to receive medical, surgical, or
hospital services or other services or compensation as provided in paragraph
(a) of Section 8, or compensation as provided in paragraph (b) of Section 8.
When an employer has petitioned for an expedited hearing, the employer shall
continue to pay compensation as provided in paragraph (b) of Section 8 unless
the arbitrator renders a decision that the employee is not entitled to the
benefits that are the subject of the expedited hearing or unless the employee's
treating physician has released the employee to return to work at his or her
regular job with the employer or the employee actually returns to work at any
other job. If the arbitrator renders a decision that the employee is not
entitled to the benefits that are the subject of the expedited hearing, a
petition for review filed by the employee shall receive the same priority as if
the employee had filed a petition for an expedited hearing by an Arbitrator.
Neither party shall be entitled to an expedited hearing when the employee has
returned to work and the sole issue in dispute amounts to less than 12 weeks of
unpaid compensation pursuant to paragraph (b) of Section 8.
Expedited
hearings shall have priority over all other petitions and shall be heard by the
Arbitrator and Commission with all convenient speed. Any party requesting an
expedited hearing shall give notice of a request for an expedited hearing under
this paragraph. A copy of the Application for Adjustment of Claim shall be
attached to the notice. The Commission shall adopt rules and procedures under
which the final decision of the Commission under this paragraph is filed not
later than 180 days from the date that the Petition for Review is filed with
the Commission.
Where
2 or more insurance carriers, private self-insureds, or a group workers'
compensation pool under Article V 3/4 of the Illinois Insurance Code dispute
coverage for the same injury, any such insurance carrier, private self-insured,
or group workers' compensation pool may request an expedited hearing pursuant
to this paragraph to determine the issue of coverage, provided coverage is the
only issue in dispute and all other issues are stipulated and agreed to and
further provided that all compensation benefits including medical benefits
pursuant to Section 8(a) continue to be paid to or on behalf of petitioner. Any
insurance carrier, private self-insured, or group workers' compensation pool
that is determined to be liable for coverage for the injury in issue shall
reimburse any insurance carrier, private self-insured, or group workers'
compensation pool that has paid benefits to or on behalf of petitioner for the
injury.
(b-1)
If the employee is not receiving medical, surgical or hospital services as
provided in paragraph (a) of Section 8 or compensation as provided in paragraph
(b) of Section 8, the employee, in accordance with Commission Rules, may file a
petition for an emergency hearing by an Arbitrator on the issue of whether or
not he is entitled to receive payment of such compensation or services as
provided therein.
Such
petition shall have priority over all other petitions and shall be heard by the
Arbitrator and Commission with all convenient speed. Such petition shall
contain the following information and shall be served on the employer at least
15 days before it is filed:
(i)
the date and approximate time of accident;
(ii)
the approximate location of the accident;
(iii)
a description of the accident;
(iv)
the nature of the injury incurred by the employee;
(v)
the identity of the person, if known, to whom the accident was reported and the
date on which it was reported;
(vi)
the name and title of the person, if known, representing the employer with whom
the employee conferred in any effort to obtain compensation pursuant to
paragraph (b) of Section 8 of this Act or medical, surgical or hospital services
pursuant to paragraph (a) of Section 8 of this Act and the date of such
conference;
(vii)
a statement that the employer has refused to pay compensation pursuant to
paragraph (b) of Section 8 of this Act or for medical, surgical or hospital
services pursuant to paragraph (a) of Section 8 of this Act;
(viii)
the name and address, if known, of each witness to the accident and of each
other person upon whom the employee will rely to support his allegations;
(ix)
the dates of treatment related to the accident by medical practitioners, and
the names and addresses of such practitioners, including the dates of treatment
related to the accident at any hospitals and the names and addresses of such
hospitals, and a signed authorization permitting the employer to examine all
medical records of all practitioners and hospitals named pursuant to this paragraph;
(x) a
copy of a signed report by a medical practitioner, relating to the employee's
current inability to return to work because of the injuries incurred as a
result of the accident or such other documents or affidavits which show that
the employee is entitled to receive compensation pursuant to paragraph (b) of
Section 8 of this Act or medical, surgical or hospital services pursuant to
paragraph (a) of Section 8 of this Act. Such reports, documents or affidavits
shall state, if possible, the history of the accident given by the employee,
and describe the injury and medical diagnosis, the medical services for such
injury which the employee has received and is receiving, the physical
activities which the employee cannot currently perform as a result of any
impairment or disability due to such injury, and the prognosis for recovery;
(xi)
complete copies of any reports, records, documents and affidavits in the
possession of the employee on which the employee will rely to support his
allegations, provided that the employer shall pay the reasonable cost of
reproduction thereof;
(xii)
a list of any reports, records, documents and affidavits which the employee has
demanded by subpoena and on which he intends to rely to support his
allegations;
(xiii)
a certification signed by the employee or his representative that the employer
has received the petition with the required information 15 days before filing.
Fifteen
days after receipt by the employer of the petition with the required
information the employee may file said petition and required information and
shall serve notice of the filing upon the employer. The employer may file a
motion addressed to the sufficiency of the petition. If an objection has been
filed to the sufficiency of the petition, the arbitrator shall rule on the
objection within 2 working days. If such an objection is filed, the time for
filing the final decision of the Commission as provided in this paragraph shall
be tolled until the arbitrator has determined that the petition is sufficient.
The
employer shall, within 15 days after receipt of the notice that such petition
is filed, file with the Commission and serve on the employee or his
representative a written response to each claim set forth in the petition,
including the legal and factual basis for each disputed allegation and the
following information: (i) complete copies of any reports, records, documents
and affidavits in the possession of the employer on which the employer intends
to rely in support of his response, (ii) a list of any reports, records,
documents and affidavits which the employer has demanded by subpoena and on
which the employer intends to rely in support of his response, (iii) the name
and address of each witness on whom the employer will rely to support his response,
and (iv) the names and addresses of any medical practitioners selected by the
employer pursuant to Section 12 of this Act and the time and place of any
examination scheduled to be made pursuant to such Section.
Any
employer who does not timely file and serve a written response without good
cause may not introduce any evidence to dispute any claim of the employee but
may cross examine the employee or any witness brought by the employee and
otherwise be heard.
No
document or other evidence not previously identified by either party with the
petition or written response, or by any other means before the hearing, may be
introduced into evidence without good cause. If, at the hearing, material
information is discovered which was not previously disclosed, the Arbitrator
may extend the time for closing proof on the motion of a party for a reasonable
period of time which may be more than 30 days. No evidence may be introduced
pursuant to this paragraph as to permanent disability. No award may be entered
for permanent disability pursuant to this paragraph. Either party may introduce
into evidence the testimony taken by deposition of any medical practitioner.
The
Commission shall adopt rules, regulations and procedures whereby the final
decision of the Commission is filed not later than 90 days from the date the
petition for review is filed but in no event later than 180 days from the date
the petition for an emergency hearing is filed with the Illinois Workers'
Compensation Commission.
All
service required pursuant to this paragraph (b-1) must be by personal service
or by certified mail and with evidence of receipt. In addition for the purposes
of this paragraph, all service on the employer must be at the premises where
the accident occurred if the premises are owned or operated by the employer.
Otherwise service must be at the employee's principal place of employment by
the employer. If service on the employer is not possible at either of the
above, then service shall be at the employer's principal place of business.
After initial service in each case, service shall be made on the employer's
attorney or designated representative.
(c)
(1) At a reasonable time in advance of and in connection with the hearing under
Section 19(e) or 19(h), the Commission may on its own motion order an impartial
physical or mental examination of a petitioner whose mental or physical
condition is in issue, when in the Commission's discretion it appears that such
an examination will materially aid in the just determination of the case. The
examination shall be made by a member or members of a panel of physicians
chosen for their special qualifications by the Illinois State Medical Society.
The Commission shall establish procedures by which a physician shall be
selected from such list.
(2)
Should the Commission at any time during the hearing find that compelling
considerations make it advisable to have an examination and report at that
time, the commission may in its discretion so order.
(3) A
copy of the report of examination shall be given to the Commission and to the
attorneys for the parties.
(4)
Either party or the Commission may call the examining physician or physicians
to testify. Any physician so called shall be subject to cross-examination.
(5)
The examination shall be made, and the physician or physicians, if called,
shall testify, without cost to the parties. The Commission shall determine the
compensation and the pay of the physician or physicians. The compensation for
this service shall not exceed the usual and customary amount for such service.
(6)
The fees and payment thereof of all attorneys and physicians for services
authorized by the Commission under this Act shall, upon request of either the
employer or the employee or the beneficiary affected, be subject to the review
and decision of the Commission.
(d)
If any employee shall persist in insanitary or injurious practices which tend
to either imperil or retard his recovery or shall refuse to submit to such
medical, surgical, or hospital treatment as is reasonably essential to promote
his recovery, the Commission may, in its discretion, reduce or suspend the
compensation of any such injured employee. However, when an employer and
employee so agree in writing, the foregoing provision shall not be construed to
authorize the reduction or suspension of compensation of an employee who is
relying in good faith, on treatment by prayer or spiritual means alone, in
accordance with the tenets and practice of a recognized church or religious
denomination, by a duly accredited practitioner thereof.
(e)
This paragraph shall apply to all hearings before the Commission. Such hearings
may be held in its office or elsewhere as the Commission may deem advisable.
The taking of testimony on such hearings may be had before any member of the Commission.
If a petition for review and agreed statement of facts or transcript of
evidence is filed, as provided herein, the Commission shall promptly review the
decision of the Arbitrator and all questions of law or fact which appear from
the statement of facts or transcript of evidence.
In
all cases in which the hearing before the arbitrator is held after December 18,
1989, no additional evidence shall be introduced by the parties before the
Commission on review of the decision of the Arbitrator. In reviewing decisions
of an arbitrator the Commission shall award such temporary compensation,
permanent compensation and other payments as are due under this Act. The
Commission shall file in its office its decision thereon, and shall immediately
send to each party or his attorney a copy of such decision and a notification
of the time when it was filed. Decisions shall be filed within 60 days after
the Statement of Exceptions and Supporting Brief and Response thereto are
required to be filed or oral argument whichever is later.
In
the event either party requests oral argument, such argument shall be had
before a panel of 3 members of the Commission (or before all available members
pursuant to the determination of 7 members of the Commission that such argument
be held before all available members of the Commission) pursuant to the rules
and regulations of the Commission. A panel of 3 members, which shall be
comprised of not more than one representative citizen of the employing class
and not more than one representative citizen of the employee class, shall hear
the argument; provided that if all the issues in dispute are solely the nature
and extent of the permanent partial disability, if any, a majority of the panel
may deny the request for such argument and such argument shall not be held; and
provided further that 7 members of the Commission may determine that the
argument be held before all available members of the Commission. A decision of
the Commission shall be approved by a majority of Commissioners present at such
hearing if any; provided, if no such hearing is held, a decision of the
Commission shall be approved by a majority of a panel of 3 members of the
Commission as described in this Section. The Commission shall give 10 days'
notice to the parties or their attorneys of the time and place of such taking
of testimony and of such argument.
In
any case the Commission in its decision may find specially upon any question or
questions of law or fact which shall be submitted in writing by either party
whether ultimate or otherwise; provided that on issues other than nature and
extent of the disability, if any, the Commission in its decision shall find
specially upon any question or questions of law or fact, whether ultimate or
otherwise, which are submitted in writing by either party; provided further
that not more than 5 such questions may be submitted by either party. Any party
may, within 20 days after receipt of notice of the Commission's decision, or
within such further time, not exceeding 30 days, as the Commission may grant,
file with the Commission either an agreed statement of the facts appearing upon
the hearing, or, if such party shall so elect, a correct transcript of evidence
of the additional proceedings presented before the Commission, in which report
the party may embody a correct statement of such other proceedings in the case
as such party may desire to have reviewed, such statement of facts or
transcript of evidence to be authenticated by the signature of the parties or
their attorneys, and in the event that they do not agree, then the
authentication of such transcript of evidence shall be by the signature of any
member of the Commission.
If a
reporter does not for any reason furnish a transcript of the proceedings before
the Arbitrator in any case for use on a hearing for review before the
Commission, within the limitations of time as fixed in this Section, the
Commission may, in its discretion, order a trial de novo before the Commission
in such case upon application of either party. The applications for adjustment
of claim and other documents in the nature of pleadings filed by either party,
together with the decisions of the Arbitrator and of the Commission and the
statement of facts or transcript of evidence hereinbefore provided for in paragraphs
(b) and (c) shall be the record of the proceedings of the Commission, and shall
be subject to review as hereinafter provided.
At
the request of either party or on its own motion, the Commission shall set
forth in writing the reasons for the decision, including findings of fact and
conclusions of law separately stated. The Commission shall by rule adopt a
format for written decisions for the Commission and arbitrators. The written
decisions shall be concise and shall succinctly state the facts and reasons for
the decision. The Commission may adopt in whole or in part, the decision of the
arbitrator as the decision of the Commission. When the Commission does so adopt
the decision of the arbitrator, it shall do so by order. Whenever the
Commission adopts part of the arbitrator's decision, but not all, it shall
include in the order the reasons for not adopting all of the arbitrator's
decision. When a majority of a panel, after deliberation, has arrived at its
decision, the decision shall be filed as provided in this Section without
unnecessary delay, and without regard to the fact that a member of the panel
has expressed an intention to dissent. Any member of the panel may file a
dissent. Any dissent shall be filed no later than 10 days after the decision of
the majority has been filed.
Decisions
rendered by the Commission and dissents, if any, shall be published together by
the Commission. The conclusions of law set out in such decisions shall be
regarded as precedents by arbitrators for the purpose of achieving a more
uniform administration of this Act.
(f)
The decision of the Commission acting within its powers, according to the
provisions of paragraph (e) of this Section shall, in the absence of fraud, be
conclusive unless reviewed as in this paragraph hereinafter provided. However,
the Arbitrator or the Commission may on his or its own motion, or on the motion
of either party, correct any clerical error or errors in computation within 15
days after the date of receipt of any award by such Arbitrator or any decision
on review of the Commission and shall have the power to recall the original
award on arbitration or decision on review, and issue in lieu thereof such
corrected award or decision. Where such correction is made the time for review
herein specified shall begin to run from the date of the receipt of the
corrected award or decision.
(1)
Except in cases of claims against the State of Illinois other than those claims
under Section 18.1, in which case the decision of the Commission shall not be
subject to judicial review, the Circuit Court of the county where any of the
parties defendant may be found, or if none of the parties defendant can be
found in this State then the Circuit Court of the county where the accident
occurred, shall by summons to the Commission have power to review all questions
of law and fact presented by such record.
A
proceeding for review shall be commenced within 20 days of the receipt of
notice of the decision of the Commission. The summons shall be issued by the
clerk of such court upon written request returnable on a designated return day,
not less than 10 or more than 60 days from the date of issuance thereof, and
the written request shall contain the last known address of other parties in
interest and their attorneys of record who are to be served by summons. Service
upon any member of the Commission or the Secretary or the Assistant Secretary
thereof shall be service upon the Commission, and service upon other parties in
interest and their attorneys of record shall be by summons, and such service
shall be made upon the Commission and other parties in interest by mailing
notices of the commencement of the proceedings and the return day of the
summons to the office of the Commission and to the last known place of
residence of other parties in interest or their attorney or attorneys of
record. The clerk of the court issuing the summons shall on the day of issue
mail notice of the commencement of the proceedings which shall be done by
mailing a copy of the summons to the office of the Commission, and a copy of
the summons to the other parties in interest or their attorney or attorneys of
record and the clerk of the court shall make certificate that he has so sent
said notices in pursuance of this Section, which shall be evidence of service
on the Commission and other parties in interest.
The
Commission shall not be required to certify the record of their proceedings to
the Circuit Court, unless the party commencing the proceedings for review in
the Circuit Court as above provided, shall file with the Commission notice of
intent to file for review in Circuit Court. It shall be the duty of the
Commission upon such filing of notice of intent to file for review in the
Circuit Court to prepare a true and correct copy of such testimony and a true
and correct copy of all other matters contained in such record and certified to
by the Secretary or Assistant Secretary thereof. The changes made to this
subdivision (f)(1) by this amendatory Act of the 98th General
Assembly apply to any Commission decision entered after the effective date of
this amendatory Act of the 98th General Assembly.
No
request for a summons may be filed and no summons shall issue unless the party
seeking to review the decision of the Commission shall exhibit to the clerk of
the Circuit Court proof of filing with the Commission of the notice of the
intent to file for review in the Circuit Court or an affidavit of the attorney
setting forth that notice of intent to file for review in the Circuit Court has
been given in writing to the Secretary or Assistant Secretary of the Commission.
(2)
No such summons shall issue unless the one against whom the Commission shall
have rendered an award for the payment of money shall upon the filing of his
written request for such summons file with the clerk of the court a bond
conditioned that if he shall not successfully prosecute the review, he will pay
the award and the costs of the proceedings in the courts. The amount of the
bond shall be fixed by any member of the Commission and the surety or sureties
of the bond shall be approved by the clerk of the court. The acceptance of the
bond by the clerk of the court shall constitute evidence of his approval of the
bond.
Every
county, city, town, township, incorporated village, school district, body
politic or municipal corporation against whom the Commission shall have
rendered an award for the payment of money shall not be required to file a bond
to secure the payment of the award and the costs of the proceedings in the
court to authorize the court to issue such summons.
The
court may confirm or set aside the decision of the Commission. If the decision
is set aside and the facts found in the proceedings before the Commission are
sufficient, the court may enter such decision as is justified by law, or may
remand the cause to the Commission for further proceedings and may state the
questions requiring further hearing, and give such other instructions as may be
proper. Appeals shall be taken to the Appellate Court in accordance with
Supreme Court Rules 22(g) and 303. Appeals shall be taken from the Appellate
Court to the Supreme Court in accordance with Supreme Court Rule 315.
It
shall be the duty of the clerk of any court rendering a decision affecting or
affirming an award of the Commission to promptly furnish the Commission with a
copy of such decision, without charge.
The
decision of a majority of the members of the panel of the Commission, shall be
considered the decision of the Commission.
(g)
Except in the case of a claim against the State of Illinois, either party or
a medical provider receiving an award of interest under Section 8.2, may
present a certified copy of the award of the Arbitrator, or a certified copy of
the decision of the Commission when the same has become final, when no
proceedings for review are pending, providing for the payment of compensation
according to this Act, to the Circuit Court of the county in which such
accident occurred or either of the parties are residents, whereupon the court
shall enter a judgment in accordance therewith. In a case where the employer refuses
to pay compensation according to such final award or such final decision upon
which such judgment is entered the court shall in entering judgment thereon,
tax as costs against him the reasonable costs and attorney fees in the
arbitration proceedings and in the court entering the judgment for the person
in whose favor the judgment is entered, which judgment and costs taxed as
therein provided shall, until and unless set aside, have the same effect as
though duly entered in an action duly tried and determined by the court, and
shall with like effect, be entered and docketed. The Circuit Court shall have
power at any time upon application to make any such judgment conform to any
modification required by any subsequent decision of the Supreme Court upon appeal,
or as the result of any subsequent proceedings for review, as provided in this
Act.
Judgment
shall not be entered until 15 days' notice of the time and place of the
application for the entry of judgment shall be served upon the employer by
filing such notice with the Commission, which Commission shall, in case it has
on file the address of the employer or the name and address of its agent upon
whom notices may be served, immediately send a copy of the notice to the
employer or such designated agent.
(h)
An agreement or award under this Act providing for compensation in
installments, may at any time within 18 months after such agreement or award be
reviewed by the Commission at the request of either the employer or the
employee, on the ground that the disability of the employee has subsequently
recurred, increased, diminished or ended.
However,
as to accidents occurring subsequent to July 1, 1955, which are covered by any
agreement or award under this Act providing for compensation in installments
made as a result of such accident, such agreement or award may at any time
within 30 months, or 60 months in the case of an award under Section 8(d)1,
after such agreement or award be reviewed by the Commission at the request of
either the employer or the employee on the ground that the disability of the
employee has subsequently recurred, increased, diminished or ended.
On
such review, compensation payments may be re-established, increased, diminished
or ended. The Commission shall give 15 days' notice to the parties of the
hearing for review. Any employee, upon any petition for such review being filed
by the employer, shall be entitled to one day's notice for each 100 miles
necessary to be traveled by him in attending the hearing of the Commission upon
the petition, and 3 days in addition thereto. Such employee shall, at the
discretion of the Commission, also be entitled to 5 cents per mile necessarily
traveled by him within the State of Illinois in attending such hearing, not to
exceed a distance of 300 miles, to be taxed by the Commission as costs and
deposited with the petition of the employer.
When
compensation which is payable in accordance with an award or settlement
contract approved by the Commission, is ordered paid in a lump sum by the
Commission, no review shall be had as in this paragraph mentioned.
(i)
Each party, upon taking any proceedings or steps whatsoever before any
Arbitrator, Commission or court, shall file with the Commission his address, or
the name and address of any agent upon whom all notices to be given to such
party shall be served, either personally or by registered mail, addressed to
such party or agent at the last address so filed with the Commission. In the
event such party has not filed his address, or the name and address of an agent
as above provided, service of any notice may be had by filing such notice with
the Commission.
(j)
Whenever in any proceeding testimony has been taken or a final decision has
been rendered and after the taking of such testimony or after such decision has
become final, the injured employee dies, then in any subsequent proceedings
brought by the personal representative or beneficiaries of the deceased
employee, such testimony in the former proceeding may be introduced with the
same force and effect as though the witness having so testified were present in
person in such subsequent proceedings and such final decision, if any, shall be
taken as final adjudication of any of the issues which are the same in both
proceedings.
(k)
In case where there has been any unreasonable or vexatious delay of payment or
intentional underpayment of compensation, or proceedings have been instituted
or carried on by the one liable to pay the compensation, which do not present a
real controversy, but are merely frivolous or for delay, then the Commission
may award compensation additional to that otherwise payable under this Act
equal to 50% of the amount payable at the time of such award. Failure to pay
compensation in accordance with the provisions of Section 8, paragraph (b) of
this Act, shall be considered unreasonable delay.
When
determining whether this subsection (k) shall apply, the Commission shall
consider whether an Arbitrator has determined that the claim is not compensable
or whether the employer has made payments under Section 8(j).
(l)
If the employee has made written demand for payment of benefits under Section
8(a) or Section 8(b), the employer shall have 14 days after receipt of the
demand to set forth in writing the reason for the delay. In the case of demand
for payment of medical benefits under Section 8(a), the time for the employer
to respond shall not commence until the expiration of the allotted 30 days
specified under Section 8.2(d). In case the employer or his or her insurance
carrier shall without good and just cause fail, neglect, refuse, or
unreasonably delay the payment of benefits under Section 8(a) or Section 8(b),
the Arbitrator or the Commission shall allow to the employee additional
compensation in the sum of $30 per day for each day that the benefits under
Section 8(a) or Section 8(b) have been so withheld or refused, not to exceed
$10,000. A delay in payment of 14 days or more shall create a rebuttable
presumption of unreasonable delay.
(m)
If the commission finds that an accidental injury was directly and proximately
caused by the employer's wilful violation of a health and safety standard under
the Health and Safety Act or the Occupational Safety and Health Act in force at
the time of the accident, the arbitrator or the Commission shall allow to the
injured employee or his dependents, as the case may be, additional compensation
equal to 25% of the amount which otherwise would be payable under the
provisions of this Act exclusive of this paragraph. The additional compensation
herein provided shall be allowed by an appropriate increase in the applicable
weekly compensation rate.
(n)
After June 30, 1984, decisions of the Illinois Workers' Compensation Commission
reviewing an award of an arbitrator of the Commission shall draw interest at a
rate equal to the yield on indebtedness issued by the United States Government
with a 26-week maturity next previously auctioned on the day on which the
decision is filed. Said rate of interest shall be set forth in the Arbitrator's
Decision. Interest shall be drawn from the date of the arbitrator's award on
all accrued compensation due the employee through the day prior to the date of
payments. However, when an employee appeals an award of an Arbitrator or the
Commission, and the appeal results in no change or a decrease in the award,
interest shall not further accrue from the date of such appeal.
The
employer or his insurance carrier may tender the payments due under the award
to stop the further accrual of interest on such award notwithstanding the
prosecution by either party of review, certiorari, appeal to the Supreme Court
or other steps to reverse, vacate or modify the award.
(o)
By the 15th day of each month each insurer providing coverage for losses under
this Act shall notify each insured employer of any compensable claim incurred
during the preceding month and the amounts paid or reserved on the claim
including a summary of the claim and a brief statement of the reasons for
compensability. A cumulative report of all claims incurred during a calendar
year or continued from the previous year shall be furnished to the insured
employer by the insurer within 30 days after the end of that calendar year.
The
insured employer may challenge, in proceeding before the Commission, payments
made by the insurer without arbitration and payments made after a case is
determined to be noncompensable. If the Commission finds that the case was not
compensable, the insurer shall purge its records as to that employer of any
loss or expense associated with the claim, reimburse the employer for
attorneys' fees arising from the challenge and for any payment required of the
employer to the Rate Adjustment Fund or the Second Injury Fund, and may not
reflect the loss or expense for rate making purposes. The employee shall not be
required to refund the challenged payment. The decision of the Commission may
be reviewed in the same manner as in arbitrated cases. No challenge may be
initiated under this paragraph more than 3 years after the payment is made. An
employer may waive the right of challenge under this paragraph on a case by
case basis.
(p)
After filing an application for adjustment of claim but prior to the hearing on
arbitration the parties may voluntarily agree to submit such application for
adjustment of claim for decision by an arbitrator under this subsection (p)
where such application for adjustment of claim raises only a dispute over
temporary total disability, permanent partial disability or medical expenses.
Such agreement shall be in writing in such form as provided by the Commission.
Applications for adjustment of claim submitted for decision by an arbitrator
under this subsection (p) shall proceed according to rule as established by the
Commission. The Commission shall promulgate rules including, but not limited to,
rules to ensure that the parties are adequately informed of their rights under
this subsection (p) and of the voluntary nature of proceedings under this
subsection (p). The findings of fact made by an arbitrator acting within his or
her powers under this subsection (p) in the absence of fraud shall be
conclusive. However, the arbitrator may on his own motion, or the motion of
either party, correct any clerical errors or errors in computation within 15
days after the date of receipt of such award of the arbitrator and shall have
the power to recall the original award on arbitration, and issue in lieu
thereof such corrected award. The decision of the arbitrator under this
subsection (p) shall be considered the decision of the Commission and
proceedings for review of questions of law arising from the decision may be
commenced by either party pursuant to subsection (f) of Section 19. The
Advisory Board established under Section 13.1 shall compile a list of certified
Commission arbitrators, each of whom shall be approved by at least 7 members of
the Advisory Board. The chairman shall select 5 persons from such list to serve
as arbitrators under this subsection (p). By agreement, the parties shall
select one arbitrator from among the 5 persons selected by the chairman except
that if the parties do not agree on an arbitrator from among the 5 persons, the
parties may, by agreement, select an arbitrator of the American Arbitration
Association, whose fee shall be paid by the State in accordance with rules
promulgated by the Commission. Arbitration under this subsection (p) shall be
voluntary.”.
With
these changes, Senate Bill 904 will have my approval. I respectfully request
your concurrence.
Sincerely,
Bruce
Rauner
GOVERNOR