2-19-2018; Odder then Odd--IL Senate Hearing to Grill, We Mean Question, New WC Arbitrators; Two New IL WC Reform Bills; Dan Boddicker on Active/Passive Prosthetics in Iowa and more

Synopsis: Odder than Odd—the IL Senate Sets a Hearing on Five New IWCC Arbitrators this Friday.


Editor’s comment: One never knows what is going on in this nutty State. We are sure there are lots less new IL WC claims being filed every year than in years past. I am sure there used to be around 75,000 new IL WC claims being filed annually about fifteen years ago. With a shelf-life of about three years, there were about 225,000 pending claims.


I am also sure there were a lot less Arbitrators when there were a lot more claims. When former Governor Blagojevich basically traded political and administrative control of the good ole “Industrial Commission” to the aggressive Plaintiff-Petitioner bar from southern IL, there were about 15 sitting Arbitrators covering about 225,000 IL WC claims across this State. Back in that day, there were six Commissioners who handle post-Arbitration administrative appeals.


About fifteen years ago, when the newly named Illinois Workers’ Compensation Commission took over for the good ole Industrial Commission, a new levy was placed on IL WC insurance premiums along with a similar levy on self-insured employers. This unprecedented levy more than tripled the budget of the IWCC. The number of IL WC Arbitrators increased to where it is now over 30. The number of newly filed claims is now just over 40,000 a year. Again, with a shelf-life of about three years, simple math indicates there are about 120,000 pending claims with more than 30 Arbitrators and 9 Commissioners who hear administrative appeals.


When does someone do a study and see if we are truly keeping around 40 hearing officers busy? Please remember I don’t want to challenge or question the hard work of the hearing officers myself and our other attorneys appear before—my worry is the State of IL is awash in red ink. Our crazy State government routinely overstaffs almost any and every job and service it provides. No one ever appears to care about efficiency or effectiveness in providing government services—all anyone in gov’t cares about is raising taxes and borrowing billions we don’t have and can’t afford.


The idea from the secret-powers-that-be that run the IWCC was more hearing officers would mean faster adjudication of IL WC claims. There isn’t a single defense client of our firm that believes IL WC claims move rapidly. Some of them feel we could have 200 Arbitrators and Commissioners and it would still run at a snail’s pace. The defense team at KCB&A takes pride in saying we move files faster than any of our competitors but there are still factors that stymie us and make it hard to get some claims closed if the other side wants to stall and stall and stall.


IL Senate Hearing to Meet Newly Appointed IL WC Arbs??? Wassup???


In an unusual move, we learned the IL Senate Judiciary Subcommittee on Tort Reform has scheduled a hearing for this Friday, February 23rd at 11 am to grill, we mean question the 5 newly appointed IL WC Arbitrators. I feel this is unprecedented and I am sure no IL Senate Committee or Subcommittee has ever done this in the past.  


·        Thomas Ciecko,

·        Robert Harris,

·        Robert Luedke,

·        Tiffany Nicole Kay, and

·        Charles Watts.


Please note these hearing officers are all Rauner appointees and are expected to be moderate and not wacky liberal. They have not been around for very long but it is our understanding they were all approved by the Senate for their appointments or they wouldn’t have started work.


The hearing will be held in room C600 Michael A. Bilandic Building 160 N. LaSalle St., Chicago.


We understand all 5 of these arbitrators were supported by the Illinois Chamber through the IWCC Advisory Board within the last year. We are also advised IL Labor and petitioner attorney representatives to the IL WC Advisory Board also supported these appointments. I encourage my readers to send someone to this odd hearing in support of these Arbitrators. Please also send me your best thoughts and I will print them with or without attribution to you.


I appreciate your thoughts and comments. Please post them on our award-winning blog.



Synopsis: Two new IL WC reform bills of interest to my readers were introduced into the IL legislature before the deadline.


Editor’s comment:


1.      HB 5240 This is an effort from the WC gurus at the Illinois State Chamber of Commerce that amends the IL Workers' Compensation Act to require a recipient of some pain management medications to sign a written agreement with the prescribing physician agreeing to comply with the conditions of the prescription.


The bill also prohibits additional prescriptions while the recipient is noncompliant. This bill limits the applicability of the lack of pain management as a consideration in awarding IL WC benefits. The bill also provides for the disclosure of violations of the agreement upon request by the employer. Finally, the bill requires the prescribing physician to file quarterly reports to obtain payment. I support most of the legislative efforts of the IL State Chamber of Commerce and I strongly support this one. I believe it is now in a Rules Committee.


2.      The other WC “reform” bill is HB 5354. It appears to be supported by the IL State Chamber but not by me. I feel it is an effort to make changes to allow the Republicans to claim it will magically bring IL WC costs down. It is possible it may make some costs and coverages go up.


This bill amends the Workers' Compensation Act and limits the scope of the longstanding term "arising out of and in the course of employment". In my view, why tinker with something that isn’t broken? Focus on great hearing officers that understand and apply the law.


The bill makes changes regarding recovery when an employee is travelling—I hate any effort to twist or skew the term “traveling employee.” Someday, our legislature may realize they can’t fix the impossible-to-understand WC term so stop “reforming” it.


The bill increases the duration of the period of temporary total incapacity supposedly necessary for medical recovery. Huh?


The bill provides returns injuries to the shoulder and hip to be considered as injuries to the arm and leg and not “body as a whole.” This implicitly reverses a controversial Appellate Court ruling.


The bill provides for the implementation of a closed formulary for prescription medicine. It also provides for electronic claims.


For reasons no one will ever understand the bill requires the posting of collateral when seeking judicial review of a decision of the IWCC and not just an appeal bond.


The bill also provides another penalty for vexatious delay in payment of IL WC benefits. The bill also increases criminal penalties for specified unlawful acts. This new bill requires the IL Workers' Compensation Commission to provide annual reports to the Governor and General Assembly regarding self-insurance. Yawn.


The bill amends the IL Freedom of Information Act to exempt certain workers' compensation related information from the scope of that Act. Finally, the bill amends the Criminal Code of 2012 to create the criminal offense of workers' compensation fraud and prescribe penalties.

Synopsis: Iowa Appellate Court holds a set of prosthetic devices includes both a passive and active prosthetic hand. Analysis by Daniel J. Boddicker, J.D., KCB&A’s Iowa Defense Team leader.

Editor’s Comment: A recent Court of Appeals of Iowa decision holds Iowa employers are legally obligated to provide both an active and passive prosthetic hand to an injured worker.

In the case of Nestle USA v. Conell, 2018 Iowa App. LEXIS 119 (Feb. 7, 2018), the Court held Iowa Code §85.27 required the employer to furnish no more than “one set” of permanent prosthetic devices. Section 85.27 states, in part, that “The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.” The employee’s hand was severely injured in an industrial accident. The employer supplied a mechanical prosthetic device that allowed the employee to manipulate his thumb and index finger. The employer argued section 85.27 obligated it to provide only one permanent prosthetic device. The court decided more was required.

The court pointed out the employee testified due to the weight and construction of the mechanical device, he could only use it a few hours per day. Additionally, according to a psychologist, the employee felt like a “Frankenstein figure” when using the mechanical prosthetic and avoided the general public when using the device.

The passive hand looked much more like a natural hand. The court held the active and passive prosthetics together were a set that allowed for the employee’s long-term health and functionality.

This article was researched and written by Daniel J. Boddicker, J.D. You can reach Dan at any time for questions about workers’ compensation at dboddicker@keefe-law.com.

2-12-2018; Gene Keefe on What I Feel is a Botched Federal "Traveling Employee" Ruling; Shawn Biery on Important Psych Record Dispute and more

Synopsis: 7th Circuit Federal Appellate Court—In Gene Keefe’s Reasoned Opinion, “Botches” WC Traveling Employee Concept and Knocks Out Suit By Injured Employee Against Employer for Co-Employee Attack


Editor’s comment: Plaintiff worked for Etihad Airways, a publicly owned airline owned and operated by the government of the United Arab Emirates. In October 2013, he was a crew member on a flight from Abu Dhabi to Chicago. When the plane touched down, the employer Etihad arranged for the four-member crew to spend the night at The Westin in downtown Chicago. At the hotel, the crew started drinking. They shared cocktails before dinner, then continued drinking during dinner. One member of the crew became intoxicated and started ranting or otherwise carrying on about how he didn’t like Americans or British citizens. As the evening wore on, this wayward crew member pretended to choke Plaintiff, a British citizen, to emphasize this somewhat childish and fairly stupid point. At the end of the meal, the wayward and intoxicated crew member basically ditched the other workers to “dine and dash.” He left without his coat or contributing to paying his share of the tab. The remaining crewmembers settled the restaurant tab, and Plaintiff took the departed crew-member’s coat to give it back to him when possible.


Later the same evening, the wayward co-worker knocked on Plaintiff’s hotel door. Plaintiff opened the door, thinking the inebriated co-worker was there to apologize for his poor manners, maybe kick in a couple of bucks toward dinner and collect his coat. Instead, without any warning, the drunken crew member blasted Plaintiff on the head and leg with a bronze hotel decoration. At the same time, the inebriated co-workers was hurling epithets about Plaintiff’s British nationality and threatened his life.

Plaintiff defended himself and eluded the drunken co-worker and went to the hotel lobby, in tattered shape. He was taken to Northwestern Memorial Hospital, where he was treated for a head and leg trauma along with a nasty scalp laceration. Plaintiff missed almost three months from work during recovery.

Back at the hotel, the drunken co-worker was arrested and charged with battery. The wayward drunk posted bond on Oct. 14 but then disappeared, violated the terms of his bond and did not return to the U.S. to face criminal charges.

Plaintiff sued the miscreant co-worker, his employer and the hotel. According to Plaintiff’s complaint, Etihad Airways asked the wayward attacker to resign as an employee. He did so, but later started working with another Etihad affiliate called Jet Airways.

In 2015, Plaintiff filed a complaint in the U.S. District Court for the Northern District of Illinois alleging negligence by the attacker along with Etihad Airways, Starwood Hotels & Resorts, LaSalle Hotel Properties and Dublin Bar and Grill. Plaintiff alleged his employer Etihad Airways knew the attacker had a history of issues with alcohol and violence, but they kept him as a worker because of nepotistic connections at the airline. Plaintiff also accused Etihad of crafting a plan “to get both the attacker and Plaintiff out of the United States as soon as possible” after the unhappy incident. Plaintiff sued Etihad Airways for negligent “retention,” common law negligence and willful and wanton conduct. Plaintiff also sued his attacker for negligence and willful and wanton conduct.

On April 7, 2017, the USDC for the Northern District of Illinois dismissed all of Plaintiff’s claims. The federal judge ruled if Plaintiff wanted a remedy and/or compensation for this injury, he would need to seek it through the Illinois Workers’ Compensation Commission.

Last Wednesday, federal Seventh Circuit Court of Appeals upheld the dismissal. It rejected Plaintiff’s argument that the Foreign Sovereign Immunities Act, which allows plaintiffs to sue foreign states, pre-empts the Illinois Workers’ Compensation Act. The decision noted Etihad Airways was considered a “foreign state” because of its affiliation with the government of the United Arab Emirates. The federal court ruled Plaintiff misinterpreted the FSIA. The Court ruled in passing the FSIA in 1976, Congress intended to prevent the executive branch from conferring immunity on foreign states by granting the power to make immunity determinations to the judiciary only. Once the decision on immunity was made, then other laws governing the suit’s relevance should apply.

The appellate ruling did not consider Plaintiff’s argument Etihad Airlines did not meet the definition of an employer under the Il WC Act, because Plaintiff had not raised it at the trial court level. If Plaintiff had raised it and the USDC had considered the argument, the case might have gone a different way. We note IL WC guru Marc Perper was quoted as saying “What jumped out at me right away about this decision was the argument that the plaintiff waived, which was whether his employer met the definition of an employer under our Workers’ Compensation Act,” Perper said. “That may have been a legitimate argument” he added. Section 1A of the IWCA defines “employer,” and “if you look at it, a foreign government is not listed among the entities that meet the definition of an employer,” Perper said. I agree strongly with Marc.

My personal legal/technical issue with the ruling is based on a very controversial concept in Illinois workers’ comp law. I don’t agree at all with the federal appellate court’s interpretation of IL WC law. I say this with all due respect to the members of the Seventh Circuit Court of Appeals. The ruling says:

[Plaintiff]’s injuries arose out of his employment. The question of whether an injury arises out of the employment of traveling employees is answered differently than for other employees. Kertis v. Ill. Workers’ Comp. Comm’n, 991 N.E.2d 868, 873 (Ill. Ct. App. 2013). “An injury sustained by a traveling employee”—one whose work requires him to travel away from his employer’s office and for whom travel is an essential element of the employment—“arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable.” Id. [Plaintiff], an Etihad pilot, was unquestionably a traveling employee. He sustained his injury while in his employer-paid hotel room on a layover when his fellow crewmember knocked on his door. That a coworker would knock on [Plaintiff]s door, and that [Plaintiff] would open the door, while the crew was staying at the hotel is both reasonable and foreseeable.

[Plaintiff]- conceded that he was injured during the course of his employment. (Appellant’s Br. at 34–35; R. 111 at 11–12.)

Please note the legal term “traveling employee” does not appear in nor is it defined in the IL WC Act or the Rules Governing Practice Before the IL WC Commission. I don’t agree the Kertis ruling relied on by the federal appellate court states “black letter” WC law or represents well-settled WC law in this state. In my view, the Kertis ruling is completely an outlier that stands by itself. The much more cogent and applicable “traveling employee” ruling is the IL Supreme Court ruling in Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Compensation Comm’n. In that ruling, our highest state court rejected the impossible-to-understand “traveling employee” concept. In my view, if the traveling employee concept ever becomes IL WC law, an admin going across the street to get a pack of gum is globally covered for anything they “reasonably” do.


I also disagree Plaintiff can “concede” he was in the course of employment—that is an issue that has to be proven in any IL WC claim. The employee doesn’t “concede” it. And whatever he “conceded” he was wrong—there is no chance, none, this man was in the course of employ when randomly attacked by a drunken goof.


Further, I don’t at all agree a bunch of drunk airline crew members who get into a stupid after hours fight over just about nothing should be entitled to IL WC benefits. They weren’t fighting about anything remotely related to their work duties, conditions or the employer. I don’t feel an employer should have any liability at all for injuries that occurred while all the workers were not on the clock or otherwise being paid and weren’t doing anything in furtherance of their employer. I also cannot imagine how an employer should be able to expect one worker to spontaneously and cowardly attack another worker.


We will have to see if/when the injured worker files an IL WC claim—I don’t personally feel the Arbitrator or IWCC are legally bound by this federal ruling. I appreciate your thoughts and comments. Please post them on our award-winning blog.



Synopsis: Just in Time for Valentine’s Day—Failure to Protect Personal Health Information Can Lead to Significant Heartache! Research and Analysis by Shawn R. Biery, J.D., MSCC.


Editor’s comment: Anyone dealing with workers’ compensation claims knows the systemic barriers to retrieving medical information. This issue is only further compounded by claims which have any alleged psychological component and as we see in a recent case in northern Illinois, disclosure of certain protected health information


In general, federal HIPAA laws have an “exception” for workers’ comp which allows disclosure of personal health information or PHI for WC claims to the extent the state law allows it. The Privacy Rule permits covered entities to disclose protected health information to workers’ compensation insurers, State administrators, employers, and other persons or entities involved in workers’ compensation systems, without the individual’s authorization:


•                    As authorized by and to the extent necessary to comply with laws relating to workers’ compensation or similar programs established by law that provide benefits for work-related injuries or illness without regard to fault. See 45 CFR 164.512(l).


•                    To the extent the disclosure is required by State or other law. See 45 CFR 164.512(a).


•                    For purposes of obtaining payment for any health care provided to the injured or ill worker. See 45 CFR 164.502(a)(1)(ii) and the definition of “payment” at 45 CFR 164.501.


However, we are seeing more providers seek releases regardless of issuance of Illinois WC Subpoenas in request for records related to WC claims, even without any psych component involved.  Inclusion of a psychological component in the claim, generally does not render the need for a release moot—and in fact, most medical releases do not actually allow for the release of mental health or drug related records unless specific verification of authorization for those records is provided separately.


Illinois also passed a law, which took effect in 1979 and applies retroactively to records and communications made prior to its adoption, and which establishes more stringent standards for disclosure with regard to mental health records. The Mental Health and Developmental Disabilities Confidentiality Act provides for the confidentiality of such information and lists narrow exceptions under which mental health records and communications between a patient and his or her physician may be disclosed. The stringent disclosure standards protect the confidentiality of such records with the goal of encouraging people to seek needed treatment. According to the MHDDCA, “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.” Some terms within the MHDDCA take on a much narrower meaning than their common everyday use.


Those definitions, found in Section 110/2, can be key in understanding the rule of law and include:


•                    “Record” is “any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.”

•                    A “communication” made confidential under the Act is “any communication made by a recipient or other person to a therapist or to or in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.”  (A “communication” includes the mere fact that a person is receiving mental health treatment.)

•                    The Act uses the terms “recipient” to refer to the patient whose records are at issue and “therapist” as the medical professional from whom confidential information is sought. (“therapist” need not be a psychologist or psychiatrist, but can be any physician or even a physician’s employee.)


Furthermore, the Act only prohibits disclosure from “those persons entering into a therapeutic relationship with clients.” So, for example, a pharmacist performing a routine transaction or questioning a customer about her mental condition and treatment does not engage in such a relationship. The Act’s provisions are construed strictly and the courts are directed to “zealously guard against erosion of the confidentiality privilege” when presiding over anyone seeking nonconsensual release of mental health records.


Section 110/15 then creates a cause of action for damages, injunction, and fees and costs for violations of the Act. Section 110/16 makes it a Class A misdemeanor to “knowingly and willfully” violate any provision of the Act. Please note such criminal exposure may apply to attorneys, claims handlers, HR managers and others. Records and communications may be disclosed in an action brought under this provision so long as it is not used for any other purpose.


In a recent ruling a “Jane Doe” plaintiff’s complaint was reinstated by the courts against a well-known Rockford law firm and one of its partners. There was a claim they violated the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Count 1), invaded her privacy (Count 4) and intentionally inflicted emotional distress (Count 5) by simply subpoenaing Doe’s mental health records without following the proper protocols in the MHDDCA and then disclosing some of the confidential information.


Plaintiff Jane A. Doe appealed an order of the circuit court of Lee County dismissing her complaint against Defendants Williams McCarthy, LLP (Williams McCarthy); Clayton Lindsey, and Treva Sarver (individually and in her capacities as trustee of the Ruby Louise Lance Living Trust dated September 2, 2009 and successor trustee of the Ruby Louise Lance Revocable Living Trust dated March 15, 2002), in accordance with section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2016)).


Plaintiff’s second amended complaint which alleged:


•                    Plaintiff previously sued Sarver regarding “the validity of the Trust and Estate of a Decedent” (the trust litigation).

•                    Sarver was represented in the trust litigation by attorney Lindsey and the law firm that employed him, Williams McCarthy.

•                    Defendants violated an order pursuant to the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq. (2012)) (HIPAA order) and the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/1 et seq. (West 2016) by disclosing to persons, including the public, without Plaintiff’s consent and without following the procedures specified in the Act, facts pertinent to Plaintiff’s mental-health status and treatment.


Factually, Plaintiff alleged, in connection with the trust litigation, defendants filed 11 subpoenas containing protected information. Plaintiff continued, “the [Lee County circuit court] allowed the public to access and view court documents in the [trust litigation], including the documents contained within Plaintiff’s court file such as the above-mentioned eleven subpoenas, all of which identified Plaintiff’s medical providers and mental health providers, via in-person viewing and via on-line case information searching, until the court entered an Order, on [July 26, 2013], sealing the file from public access.” According to Plaintiff, this violated the HIPAA order, entered on March 13, 2012, which limited access to such records to “attorneys of record and the staff of the attorneys of record.”


The complaint also alleged Defendants knew certain individuals were “therapists,” that Sinnissippi Centers, Inc., in Dixon and Rochelle were mental-health treatment facilities, and disclosure of the records of such individuals and facilities violated the MHDDCA to the extent procedures set forth in the Act were not followed. The complaint further alleged Williams McCarthy and Lindsey conveyed such information to Sarver, in violation of the HIPAA order. Further, contrary to the provisions of the Act, defendants did not notify plaintiff’s treatment providers that they were seeking access to plaintiff’s mental-health records. Moreover, defendants failed to make the threshold showing plaintiff had placed her mental health at issue in the trust litigation. Also, prior to any disclosure, the trial court was required to make an in camera review of the records. The subpoenas were not accompanied by a judge’s written order authorizing the disclosure.


The complaint also alleged Williams McCarthy and Lindsey contacted plaintiff’s treatment providers and threatened they would be held in contempt if they did not release plaintiff’s records. During a deposition, Williams McCarthy and Lindsey attempted to question a psychiatrist about plaintiff’s mental-health status and treatment, in violation of the HIPAA order and the Act. The complaint further alleged Sarver violated the HIPAA order by “viewing and copying such records of Plaintiff[] and by obtaining and viewing a listing of Plaintiff’s medical providers and mental health providers which Defendants Williams McCarthy and Lindsey had obtained from Attorney Paul Whitcombe, who was then Plaintiff’s counsel in the [trust litigation].” Plaintiff stated that, during a deposition, Sarver “made an outburst and yelled, within the hearing of and in the presence of the parties, their counsel, the court reporter, and the deponent, Plaintiff was mentally ill.” In May 2013, plaintiff received three envelopes in the mail, with no return addresses, containing copies of various medical records, mental-health records, and subpoenas. Finally, during the pendency of the trust litigation, defendants made statements, in open court and in the presence of the public, concerning plaintiff’s mental-health status, diagnoses, and treatment.


The complaint set forth five counts under which plaintiff sought relief, incorporating by reference the material set forth above.


•                    The first count set forth a claim under the Act as to all defendants, alleging defendants violated the Act by seeking and obtaining plaintiff’s mental-health records even though she did not place her mental health at issue; seeking and obtaining such records without ensuring the trial court had conducted an in camera review of them; seeking and obtaining such records without ensuring the trial court had made the requisite findings under the Act after conducting an in camera review; seeking and obtaining such records without written notice to plaintiff and her mental-health treatment providers; seeking a court order requiring plaintiff to sign a written consent to the disclosure of such records; filing a motion to dismiss, “seeking to punish [p]laintiff for exercising her statutory privilege to refuse to disclose” such records; and issuing subpoenas that did not comply with the Act.

•                    Count II alleged legal malpractice by Williams McCarthy and Lindsey. It first alleged an attorney-client relationship between all defendants. It then claimed plaintiff was a third-party beneficiary of the attorney-client relationship. Plaintiff based this claim on the fact Lindsey drafted the HIPAA order, purportedly for plaintiff’s benefit. Thus, plaintiff reasons, Williams McCarthy and Lindsey owed her a duty of reasonable care. The actions taken by Williams McCarthy and Lindsey led to the disclosure of certain mental-health records breached this duty.

•                    The third count alleged negligent supervision on the part of Williams McCarthy. This count sought to hold Williams McCarthy liable for failing to prevent Lindsey from violating the HIPAA order and the Act.

•                    Count IV, pertaining to all defendants, alleged an invasion of plaintiff’s privacy by the “public disclosure of private facts.”

•                    The fifth count alleged intentional infliction of emotional distress. This count alleged that defendants’ violations of the Act and the HIPAA order exhibited “wanton and utter indifference” to plaintiff’s rights and constituted “extreme and outrageous conduct.”


Defendants moved to dismiss. The trial court granted the motion. It first noted the instant litigation arose out of the previous trust litigation, which was in front of a different trial judge, Judge Ackert. The trust litigation concerned claims the settlor, Ruby Lance, lacked the capacity to execute a trust and Sarver exerted undue influence over Lance, which caused plaintiff to be excluded from the trust. During that litigation, plaintiff alleged, defendants subpoenaed, obtained, and made part of the court file certain of plaintiff’s medical and mental-health records. The issues presented in the motion to dismiss, the trial court noted, were whether counts I, IV, and V were barred by the absolute-litigation privilege and whether, with respect to counts II and III, any duty existed and extended to plaintiff. The trial court found Williams McCarthy and Lindsey owed no duty to plaintiff, and it dismissed counts II and III. It expressly found that the HIPAA order was not drafted with the primary intent to benefit plaintiff; rather, Williams McCarthy and Lindsey simply intended to comply with the law.


As for the remaining counts, the trial court found they were barred by the absolute litigation privilege. It noted the privilege applied to claims of intentional infliction of emotional distress and invasion of privacy. Although count I was based on the Act, it was in the nature of an invasion-of-privacy claim, so the privilege applied to it as well. The trial court further noted plaintiff’s mental-health records were relevant to the trust litigation. It observed one of the issues was whether the reason plaintiff was left out of Lance’s “will or trust” was her estrangement from Lance. Plaintiff’s need for counseling was purportedly due, in part, to this estrangement, and the mental-health records would substantiate this. There was also an issue regarding whether, in assessing Lance’s mental capacity, a doctor attributed some of plaintiff’s history to Lance. Thus, plaintiff’s records were relevant to cross-examining the doctor and assessing his opinion. Finally, the trial court noted that conduct in a previous case typically cannot form the basis of a cause of action in a new case.


This appeal followed. However on appeal, plaintiff limited her arguments to counts I, IV, and V, the counts dismissed pursuant to the absolute-litigation privilege. She made no argument that Williams McCarthy or Lindsey owed her a duty (thus, counts II and III are not addressed any further).


The Appellate Court noted an affirmative matter outside the complaint may bar or defeat the cause of action based upon Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139. Here, the affirmative matter relied on by defendants is the absolute-litigation privilege. As the court explained, the absolute-litigation privilege immunizes certain statements and conduct by attorneys in the course of litigation. See, e.g., Medow v. Flavin, 336 Ill. App. 3d 20, 32 (2002). Also, “[a] private litigant enjoys the same privilege concerning a proceeding to which he is a party.” Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677. The privilege is based on section 586 of the Restatement (Second) of Torts, which provides as follows:


An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. Restatement (Second) of Torts § 586 (1977).


The purpose of the privilege is to allow attorneys “ ‘the utmost freedom in their efforts to secure justice for their clients.’” Kurczaba v. Pollock, 318 Ill. App. 3d 686, 701-02 (2000) (quoting Restatement (Second) of Torts § 586 cmt. a, at 247 (1977)). It further serves to facilitate the free flow of information between attorneys, clients, and the court system. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152. Its application “is limited, however, to instances where the administration of justice and public service require immunity.” Id. As an absolute privilege, the class of communications to which it applies is narrow. Kurczaba, 318 Ill. App. 3d at 701. For the privilege to apply, the communication must bear some relationship to the proposed or “pending litigation” and it must be in furtherance of that litigation. O’Callaghan, 2015 IL App (1st) 142152. However, this latter requirement is not strictly applied, and all doubts are to be resolved in favor of finding the communication pertinent to the litigation. Id. Indeed, when the privilege applies, “no liability will attach even at the expense of uncompensated harm to the plaintiff.” Id.


The court first examined counts IV and V—alleging common-law invasion of privacy and intentional infliction of emotional distress, respectively. In Johnson, 2014 IL App (1st) 122677, the court found the privilege applicable to claims of “invasion of privacy, negligence, negligent infliction of emotional distress, and breach of oral and written contracts.” See also O’Callaghan, 2015 IL App (1st) 142152 (holding privilege applies to action alleging intentional infliction of emotional distress). Hence, we have little difficulty concluding that the trial court correctly determined that the privilege applied to bar counts IV and V. These counts were based on acts done in the course of and in furtherance of the trust litigation. Plaintiff complained that defendants placed material in the court file and made statements in open court. Counts IV and V relied—generally—on the same acts. Seeking information from witnesses, issuing subpoenas, and seeking to obtain and enforce discovery are intimately related to litigation. In short, the acts of which plaintiff complained were clearly pertinent to the trust litigation, so the privilege plainly applies. Recasting the same acts as different torts does not avoid this bar. See Johnson, 2014 IL App (1st) 122677.


There is a lengthy discussion in the decision regarding the arguments—pertinent to the point of this article is a note of the court indicating defendants’ actions occurred in a judicial proceeding, so the trial court could have imposed sanctions. Further, the trial court did seal the records at issue. They also noted the allegation of information disseminated to her mental-health treatment providers, unidentified persons present in the courtroom, unidentified members of the public, attorneys not of record, persons present during depositions, and unidentified persons who (might have) viewed the court file was too speculative to merit consideration. As such, several circumstances were not present for those counts to be present.


Turning to count I, the court did perceive different concerns at issue. Plaintiff argues that the absolute-litigation privilege has never been applied to bar a proceeding under the Act. She further criticizes the trial court’s attempt to analogize an action under the Act to an invasion-of-privacy claim. Defendants acknowledge that the privilege has not previously been applied in this context. Unlike with the common-law counts, here we must consider whether the privilege can thwart a legislative enactment. Indeed, the chief flaw with the trial court’s analogy is that invasion of privacy is a common-law theory whereas an action based on the Act is statutory. The Act itself plainly creates a private right of action. Section 15 of the Act states, “Any person aggrieved by a violation of this Act may sue for damages, an injunction, or other appropriate relief.” 740 ILCS 110/15 (West 2016). Section 3(a) states that “[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act.” 740 ILCS 110/3(a) (West 2016). Furthermore, in accordance with section 10, the Act applies “in any civil, criminal, administrative, or legislative proceeding.” 740 ILCS 110/10 (West 2016).

Thus, the plain language of various provisions of the Act indicates that the legislature intended it to control all releases of the material it makes confidential in all types of proceedings and that a safeguard against improper disclosure is a civil action. It has been held that “the Act constitutes a ‘strong statement’ by the General Assembly about the importance of keeping mental health records confidential. [Citation.]” Norskog v. Pfeil, 197 Ill. 2d 60, 71 (2001). Conversely, the absolute-litigation privilege applies to a “narrow class of cases.” Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 561 (1997). Although defendants make a number of policy-based arguments as to why the privilege should be applied expansively, we view this issue more as one of legislative intent regarding the scope of the Act.


Thus, the question remains as to whether the statutory provisions must give way to the absolute-litigation privilege. We find sound guidance on this question in an analogous context, as this question has already been addressed in the context of the common-law privilege enjoyed by witnesses. In Renzi v. Morrison, 249 Ill. App. 3d 5, 6 (1993), the court considered whether common-law witness immunity foreclosed a lawsuit under the Act where a witness disclosed confidential material during a court proceeding. The Renzi court concluded that it did not. Id. at 8. The court observed that the “legislature recognized that the right to witness immunity must be balanced with the right to privileged communication between doctor and patient.” Id. The legislature created a cause of action for “any person aggrieved by a violation of [the] Act.” Id.; see also 740 ILCS 110/15 (West 2016). The court then noted that allowing the privilege to defeat such an action would make such language a nullity. Renzi, 249 Ill. App. 3d at 8. See also Mandziara v. Canulli, 299 Ill. App. 3d 593, 598 (1998) (approving of Renzi and noting that common law “must give way” to the statutory protections of the Act). Renzi concerned common-law witness immunity while this case concerns the absolute litigation privilege. Nevertheless, we perceive no principled way to distinguish Renzi and its progeny. Whatever can be said about the interplay between the Act and common-law witness immunity can also be said in the instant context. Accordingly, we hold that the absolute litigation privilege provides no shield for a party charged with a violation of the Act and in light of the foregoing, they did reverse the trial court’s dismissal of count I of plaintiff’s complaint, and otherwise affirm. The cause was then remanded for further proceedings consistent with the opinion with regard to absolute litigation privilege.


The takeaway for anyone dealing with personal health information is to safeguard that information as you would safeguard your wallet!  Secondarily, it is another reason to seek HIPAA compliant releases for your claims—and we believe any refusal to provide at least a specific release related to conditions alleged in a workers’ compensation claim should provide a Respondent a shield to penalties for denial since the penalties are so severe as to provide a significant barrier to the appropriate flow of information necessary to promote implementation of the statutory requirements of the IL WC Act. This article was written and researched by Shawn R. Biery, JD MSCC. You can reach Shawn at sbiery@keefe-law.com with any questions or thoughts.


2-5-2018; Matt Ignoffo on Surprising WI "Exclusive Remedy" Ruling; Diversity/Inclusion/Mental Health and Substance Abuse CLE's Now Req'd for IL Lawyers; Shawn Biery's New + Free IL WC Rate Sheet

Synopsis: Surprising Wisconsin Court of Appeals WC/GL Decision!!!! - Temp Employees Can Bring Tort Claims Against Their Temp Employers.

Editor’s Comment: This unexpected holding was filed recently in In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company and Alpine Insulation, No. 2017AP142 (issued January 9, 2018). The facts involve a single-vehicle accident where Decedent Rivera and two other individuals died. Rivera was a passenger in a vehicle owned by Alpine Insulation and insured by West Bend. At the time of the crash, the vehicle was traveling from one Alpine job site to another. Rivera was employed by Alex Drywall, which provided him to perform work for Alpine Insulation. The vehicle’s driver was a temporary employee of Alpine. This was a single-vehicle accident and the driver’s negligence was alleged to be the cause of the accident.

Decedent Rivera’s estate brought a wrongful death lawsuit against Alpine Insulation and its insurer, West Bend. It does not appear the Estate sought, or was paid, workers’ compensation death benefits. In the Circuit Court, Alpine and West Bend moved for summary judgment arguing Alex Drywall, Rivera’s employer, was a temporary help/employment agency. They asserted due to the fact Rivera was an employee of a temporary help agency, the Estate was prohibited from bringing a tort action against Alpine, the temporary employer. The Circuit Court agreed and granted summary judgment in favor of Alpine and West Bend. The Estate appealed.

The Court of Appeals noted, while the exclusive remedy provision applies to claims by an employee against his or her “employer,” it does not prohibit an employee from pursuing claims against third party tortfeasors. If Alpine had been Rivera’s “employer” under the WI Act at the time of his death, the exclusive remedy provision would unquestionably bar the Estate’s tort claims against Alpine and West Bend.

It is undisputed that Rivera’s “employer,” was Alex Drywall, the temporary help agency that Alpine Insulation compensated for Rivera’s services. The exclusive remedy provision therefore prohibits the Estate from bringing tort claims directed against Alex Drywall. However, the Court held it does not prohibit the Estate from pursuing tort claims against Alpine and West Bend.

Next the Court addressed the section of the WI Act stating, “…No employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any of the following: Any employer that compensates the temporary help agency for the employee’s services” (emphasis added by the Court of Appeals). The Court stated the necessary implication of this bolded language is that a temporary employee who does not make a claim for compensation under the WI Act is not prohibited from bringing a tort claim against his or her temporary employer.

Alpine and West Bend argued the exclusive remedy provision should shield employers from tort liability whenever an employee has the right to make a worker’s compensation claim.

The WI Appellate Court indicated to adopt such an interpretation would require it to either:

1.      Read words into the statute that currently aren’t there—specifically, the words “has the right to make”; or

2.      Read the phrase “who makes a claim for compensation” out of the statute entirely.

The WI Appellate Court’s conclusion is that because the Estate had not made any claim for workers’ compensation medical or death benefits, it was not barred from pursing tort claims against Alpine and West Bend.

Wisconsin employers need to recognize this significant development. Unless this legal concept is overturned on further appeal, they have exposure for tort liability where prior to this decision they likely presumed exclusive remedy protection. General liability carriers likewise would not have anticipated this exposure and premiums may need to be adjusted and agreements revised.

We have a unique set of facts here where WC benefits were apparently not paid and the driver who was at fault just happened to be an employee of the temporary employer. Remember this was a single-vehicle accident. The first issue that came to mind when reading the fact pattern is what would have been the result had Alex Drywall offered and paid death benefits under the WI WC Act, and why didn’t it? If it had automatically paid would the Decedent’s Estate therefore have made a claim for compensation, precluding it from bringing the tort action?

We would not be surprised if this is further appealed to the Wisconsin Supreme Court or if the legislature steps in to address the Court’s holding. Stay tuned.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C., who is licensed and practices in Illinois and Wisconsin. Matt is one of KCB&A’s top Medicare Set-Aside experts. Please feel free to contact Matt on a 24/7 basis at mignoffo@keefe-law.com.


Synopsis: Warning to IL Lawyers—Diversity/Inclusion/Mental Health and Substance Abuse CLE Courses are Now Required to Keep Your License!


Editor’s comment: For the past decade, the Illinois Supreme Court has encouraged attorneys to take diversity CLE courses and mental health and substance abuse CLE courses and activities to fulfill part of their professional responsibility requirement. Over that decade, the percentages of those courses offered and taken in Illinois remained practically unchanged.


Due the lack of response, our highest Court recognized what they feel is the profession’s challenges in the diversity/inclusion along with concerns in the mental health and substance abuse arena. To reverse what they felt was a “trend,” the Court adopted the recommendation of the Illinois Supreme Court Commission on Professionalism requiring Illinois attorneys to now take one hour of diversity and inclusion CLE and also one hour of mental health and substance abuse CLE during each two-year reporting period. This adoption comes in light of national efforts, particularly by the American Bar Association, to encourage all states to require lawyers to take courses in diversity and mental health and substance abuse.


As a veteran IL WC attorney, I would comment our IL Workers’ Compensation Commission is not particularly diverse or inclusive, in my opinion. I hope they start to hear this message. I would further opine, with due respect, the IL Appellate Court, WC Division is about the least diverse group of justices I can remember in almost four decades of practice. To my knowledge, the IL Supreme Court controls appointments to that panel and one might hope our highest Court’s members would work to make that group of justices more diverse and/or inclusive.


I may start working up a course on these important topics for interested attorneys and the public. Watch this space for developments.


FAQs for Attorneys


1. What is the new diversity/inclusion and mental health/substance abuse CLE requirement? Under Amended IL Supreme Court Rule 794(d), Illinois attorneys will be required to take one hour of diversity and inclusion CLE and one hour of mental health and substance abuse CLE as part of their six hour professional responsibility requirement. The amended Rule describes the substantive areas in slightly different language than used in current 794(d) and the new language will be referred to in these FAQs as “diversity/inclusion” and “mental health/substance abuse.”


2. What is the rationale for this new requirement? In Supreme Court Rule 794(d), the Supreme Court requires Illinois lawyers to take six hours of professional responsibility CLE, which includes, as two of five optional areas, the topical issues of both diversity and mental illness and substance abuse. Data collected by the Illinois Supreme Court Commission on Professionalism supposedly demonstrates few attorneys take courses focused on either of those two areas. The new requirement will use education as a tool to encourage attorneys to seek more information and engagement on diversity and mental health and substance abuse issues.


3. When does the new requirement go into effect? The Rule’s effective date was July 1, 2017 and begins with the two-year reporting period ending June 30, 2019. No courses offered or activities taken prior to July 1, 2017 will be eligible for the new diversity/inclusion and mental health/substance abuse CLE requirement.


4. Who will administer the new requirement? The Illinois Supreme Court Commission on Professionalism will continue to administer the entire professional responsibility requirement.


5. Do newly-admitted attorneys have to fulfill this requirement? No, this new requirement will not apply to newly-admitted attorneys. New attorneys will continue to have to complete their newly-admitted attorney requirement.


6. Does completing the Supreme Court’s lawyer-to-lawyer mentoring program meet the diversity and mental health and substance abuse CLE requirement? Yes. Under Amended Rule 794(d)(2), completing the Court’s mentoring program as a mentor or mentee will fulfill the new CLE requirement. Attorneys can find out more information about the mentoring program on the Illinois Supreme Court Commission on Professionalism’s website.


7. What courses will qualify for diversity/inclusion or mental health/substance abuse CLE credit? The provider offering the course will identify the course as offered to fulfill the diversity/inclusion or mental health/substance abuse CLE credit, in the same way that courses are currently identified for professional responsibility CLE credit. The Commission on Professionalism will continue to review and approve the content of such courses as fulfilling the professional responsibility CLE requirement. The Commission on Professionalism’s Professional Responsibility Education Guide explains courses geared to promoting diversity, inclusion, and increased mental health and preventing substance abuse are approved by the Commission (and will continue to be approved) for professional responsibility CLE credit.


8. Do out-of-state courses qualify for diversity/inclusion or mental health/substance abuse CLE credit? Yes. Under Rule 795(c)(5), attorneys can receive Illinois CLE credit for CLE courses taken outside of Illinois as long as the provider did not seek Illinois credit for the program. Attorneys seeking credit for a professional responsibility course must first complete an MCLE Board application. Once they receive approval from the Board, they must then complete a professional responsibility out-of-state CLE 3 application with the Commission on Professionalism and request diversity and inclusion or mental health and substance abuse CLE credit.


9. Do non-traditional courses qualify for diversity/inclusion or mental health/substance abuse CLE credit Yes. Under Rule 795(d), attorneys can receive CLE credit by attending or participating in certain “nontraditional” courses or activities. To request diversity/inclusion or mental health/substance abuse CLE credit, attorneys must complete a professional responsibility non-traditional CLE application and request such CLE credit.


10. How can attorneys locate courses offered for diversity/inclusion or mental health/substance abuse CLE credit? Attorneys can locate courses through their customary providers, including the Lawyers Assistance Program and the Commission on Professionalism, or use the MCLE Board Course Search to search for courses that offer diversity/inclusion or mental health/substance abuse CLE credit.


11. Are there any free online diversity/inclusion or mental health/substance abuse CLE courses? The Lawyers’ Assistance Program offers several one-hour mental health/substance abuse online courses. The Illinois Supreme Court Commission on Professionalism offered a one-hour diversity and inclusion online course that began in summer 2017.


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