Synopsis: Correction/Clarification On Last Week’s Lead KCB&A Update Article.

Editor’s comment: We wrote last week about what we feel is the Illinois Appellate Court, WC Division’s expansion of our IL Workers’ Compensation Act to allow wage differential benefits to be paid, even when the employer accommodates restrictions and there is no actual loss in earnings. This decision was reported by many national workers’ comp news sources as having the IL WC system require wage loss benefits be awarded by our Commission and reviewing courts even where there was no demonstrable loss of wages or income.

Our frustration with the ruling in Jackson Park Hospital v. IWCC led us to recommend against further appeals to this Division of our Appellate Court from the defense/respondent side of the aisle, as we find it virtually impossible to succeed based on the Court’s recent track record. In expressing our recommendation in this regard, we may have inappropriately referenced what we felt was a “mistake” of defense counsel on the case for having appealed the Circuit Court’s ruling to that panel.

It was not our intention to imply the defense attorney representing the Hospital had done anything wrong or was mistaken in his litigation management of the case at all. In fact, we know the attorney to be a veteran and capable litigator and we are certain he argued well for his client’s interests. It was pointed out to us further the wage differential award under 8(d)(1) in this case was actually issued by the Circuit Court Judge based on Petitioner’s appeal, and wage loss benefits were awarded based upon that reviewing court’s ruling finding the IWCC decision was against the “manifest weight of the evidence” standard. Therefore, the employer and defense counsel appropriately felt there may be a chance to reverse on further review to the Appellate Court, WC Division--to no avail. We were probably acting as “arm-chair quarterbacks” to unfairly comment in an after-the-fact perspective on what to do with an unsuccessful Circuit Court appeal. We extend our apologies to our respected colleague who clearly made what was felt to be the best possible decision to work hard and argue harder to seek what we feel should have been an appellate reversal and reinstatement of the IWCC ruling. Our commentary was intended to emphasize our view that current and future appeals by Illinois employers, government bodies and insurance carriers to this sitting Appellate Court panel are met by what we feel is a very Petitioner-oriented group of jurists and the chances of success are statistically quite slim. Employers should be mindful of the Court’s recent track record when considering what is usually the final level of an IL WC appeal.

The partners at KCB&A are in the ongoing process of updating our textbook to be used in our course on workers’ compensation law and practice we teach at The John Marshall Law School in Chicago. In pursuing the exhaustive research for that treatise, we review literally every single decision by the five-member IL Appellate Court, Workers’ Comp Division. What we have seen in doing that analysis is decision after decision from our Appellate Court, WC Division where all five justices rule with a single and unanimous mindset that we feel is insuring workers’ comp benefits are being awarded at the highest possible level. In some instances, we feel the justices are ruling in a creative fashion to “judicially legislate” or creatively outline new legal concepts to expand the WC Act’s coverage and/or heighten benefit awards, as we feel happened in the Jackson Park Hospital v. IWCC ruling we reported last week.

As we have also repeatedly advised the WC defense community, we are seeing more and more Circuit and Appellate Court rulings where the “manifest weight of the evidence” standard does not appear to constrain our reviewing courts in the fashion one might have felt would be followed after the crystal-clear rulings on the topic in two seminal decisions from the IL Supreme Court in Sisbro v. IWCC and Twice Over Clean v. IWCC. In both those decisions, our Supreme Court cautioned the lower courts not to interject their own opinions and supplant those of the IL WC Commission. Despite those clear-cut decisions, we still see case after case where denials by the IWCC almost regularly become awards in the reviewing courts.

As another thought, we point out our IL Supreme Court controls the composition of the five-member IL Appellate Court, WC Division. To read the many rulings of the penultimate reviewing court, one might think our Supreme Court was entirely from Democratic roots and pro-labor. In stark contrast to such expectations, the IL Supreme Court has three Republicans of its seven members. We would then assume there might be two members of the five-member IL Appellate Court who would be from Republican roots and be pro-management. One might then think you would see regular dissents from the pro-management/Republican members with perhaps an occasional win by the minority group. Instead the vast majority of IL WC appellate rulings are unanimous for the interests of Illinois labor and a dissenting voice is rarely presented—by that, we mean we see an Appellate Court defense dissent in the work comp arena about once every several years.

Is There a Concern About Unanimity at the IL Appellate Court, WC Division?

When we see strong unanimity from a veteran, erudite and strong-willed court, such as this, you have to start wondering why defense lawyers are first recommending and then taking cases to this third level of WC appeal. As we indicate above, after the third level of appeal, defense lawyers rarely bring back anything for their clients to appreciate in exchange for taking on the cost, uncertainty and risk of that appeal--there have been no defense dissents in the vast majority of IL WC appellate rulings in the last several years. Will this “activist” harmony continue?—there is no indication any of the justices are even slightly leaning to the defense side. For now, an overwhelmingly pro-labor, pro-benefits consensus statistically reigns.

That is partly because some of the recent decisions were decidedly minor in scope and outcomes predictable. But the Appellate Court, WC Division justices were also unanimous in significant cases, too. When we see a concurrence, it is one or two justices seeking to add more fuel to the majority’s award. The recent unanimous cases are noteworthy for a second reason: many of our august justices truly speak with a single voice. Such authentically unanimous decisions are starting to signal a lack of hope for employers, governments and insurance carriers in getting what they might feel is a fair shake.

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Synopsis: IL Supreme Court Orders E-Filing for Civil Claims. Will the IWCC Follow?

Editor’s comment: Starting in July 2017, all Illinois civil claims are going to follow e-filling protocols. We are happy to see our highest court move to streamline and automate these processes that we feel should reduce waste and save taxpayers money. We hope the practice of criminal law is soon to follow. We also feel some older lawyers may leave the practice rather than deal with the many computer-based changes that will be coming to their practices.

We also hope Chairperson Fratianni and her great staff are looking into taking our Illinois Workers’ Compensation Commission into the land of e-filing and e-service. You may note they recently ended the use of snail mail to issue decisions—we feel all IWCC notices can and should be more streamlined and much faster. Status calls can and should be conducted online. Again, this may reduce IWCC staffing needs which should save Illinois business and governments money, as they pay 100% of the cost of operating the IWCC.

Here is the IL Supreme Court’s Historic Order from Last Week:

The exchange of information required to resolve disputes in court has, until the past quarter century, relied almost exclusively on paper documents . Technology has since evolved to provide for the automated exchange of court information. Court users, including self-represented litigants, increasingly benefit from paperless court systems that allow for electronic filing, service and access to case documents.

The Supreme Court of Illinois has adopted numerous rules, policies and initiatives to promote e-filing with the goal of fostering the effective and efficient administration of justice. Advances in e-filing were initiated on September 19, 2002, when the Court filed M.R. Order 18368 authorizing the electronic filing of documents with the Supreme Court on a pilot basis. However, after several years, only five counties were operating under the pilot program. To encourage expansion of e-filing, the Court approved Electronic Filing Standards and Principles on October 24, 2012, thereby concluding the pilot status of civil case e-filing and authorizing permanent e-filing upon circuit court request and Court approval. In September 2014, the Court amended the Electronic Filing Standards and Principles to include e-filing in criminal case types and traffic citations. Yet, to date, only 15 of 102 Illinois counties have sought and been granted approval for e-filing. The scant use of e-filing statewide brings to bear what the Supreme Court has long recognized -- the barriers to statewide e-filing revolve primarily around the wide variances in funding and technology resources available to the state 's 24 circuit courts, including the 13 different case management systems currently operating in Illinois.

Committee Review and Recommendations

To address this challenge, the Technology Committee of the Conference of Chief Circuit Judges was tasked in 2013 with considering statewide standardization of data definition and exchange methods for e-filing and e-records. On June 21, 2013, the committee included within its recommendations to the Conference the conclusion that statewide e-filing efforts will develop if courts are mandated to e-file and follow a common set of standards for data packaging and organization.

On November 26, 2014, the Court created the e-Business Policy Advisory Board and Technical Committee comprised of judges, court clerks, attorneys and court technology personnel. The e-Business Policy Board is charged with providing recommendations, advice, and guidance to the Supreme Court and its Administrative Office of the Illinois Courts regarding the implementation of e-Business applications and data exchanges in Illinois circuit courts. On December 15, 2015, the e-Business Policy Board made several recommendations to the Court, including: (1) set a date certain for the implementation of mandatory e-filing of civil case s for all counties in the state; (2) require a single e-filing manager (EFM) to integrate e-filed documents into the case management systems of all counties not presently approved to conduct e-filing; and, (3) allow counties currently approved for e-filing to continue with their current e-filing systems, including EFMs, until one year after the centralized EFM has been operational for all other counties in the state, during which time a review should be conducted to recommend a date certain for those counties to begin using the centralized EFM for the e-filing of civil cases.

In spite of the rules, policies and standards in place, the implementation of discretionary e-filing program s has not achieved the desired goal of statewide e-filing on civil matters. As such, in reliance upon the recommendations of multi-disciplinary committees, boards, and court staff who have spent years evaluating this issue, this Court concludes that e-filing in civil cases in Illinois must be made mandatory.

THEREFORE, IT IS ORDERED that:

1. This Order governs e-filing in civil cases for the Illinois Supreme Court, Illinois Appellate Court and Illinois Circuit Courts.

2. E-filing of civil cases shall be mandatory in the Illinois Supreme Court and the Illinois Appellate Court effective July 1, 2017.

3. E-filing of civil cases shall be mandatory in Illinois Circuit Courts effective January 1, 2018.

4. In the Illinois Supreme Court and Illinois Appellate Court, e-filing of civil cases shall occur consistent with applicable policies, guidelines and/or standards authorize d by the Supreme Court and through the utilization of a centralized electronic filing manager (EFM) authorized by the Supreme Court. The centralized EFM shall be integrated with the Supreme Court Clerk and the five Illinois Appellate Court Clerk case management systems.

5. In all Circuit Courts which have not implemented an authorized local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court, and through the utilization of a centralized electronic filing manager (EFM) authorize d by the Supreme Court. The centralized EFM shall be integrated with each Circuit Court's case management system.

6. In all Circuit Courts operating an approved local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court, and through the utilization of an electronic filing manager (EFM) authorized by the Chief Circuit Judge and Circuit Clerk or the centralized EFM authorized by the Supreme Court. After January 1, 2018, and following evaluation of the implementation and operation of the centralized EFM, the Supreme Court may designate a future date certain at which time all such Circuit Courts shall utilize the centralized EFM authorized by the Supreme Court for the e-filing of civil cases. The centralized EFM shall be integrated with each Circuit Court's case management system.

7. Once a court is subject to mandatory e-filing under this Order, attorneys and self-represented litigants must e-file all documents in civil cases, except documents exempted by rules adopted by this Court. Attorneys and self-represented litigants may not file documents through any alternative filing method, except in the event of emergency. Courts may not accept, file or docket any document filed by an attorney or self-represented litigant in a civil case that is not filed in compliance with this Order, except in the event of an emergency. The Supreme Court, Appellate Court and Circuit Courts must provide designated space, necessary equipment, and technical support for self-represented litigants seeking to e-file documents during regular court hours.

8. Effective July 1, 2017, all trial court records on appeal will be standardized and transmitted using the central electronic filing manager (EFM) service from each county to the respective reviewing court.

9. The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order.

10. Courts who believe they cannot comply with this Order by the mandatory implementation date specified may petition the Supreme Court for an extension. Such extensions shall not be favored but may be granted for good cause shown.

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

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Synopsis: On the Federal Side of Our Newly Computerized Courts, the USDC for the Northern District of Illinois Announces Their New Website.

Editor’s comment: We want the legal/government and insurance community to get a sense of how computerization is rapidly coming at every level of the practice of law. You need to get used to it and work to learn all of it. We assure you the defense team at KCB&A is on the forefront of this trend.

Welcome to the Northern District of Illinois' new website

We are pleased to announce the launching of the court's newly redesigned website. www.ilnd.uscourts.gov

Averaging 24,000 visits a month, the court's website has increasingly become an important place for parties and the public to access information about cases, judges, and court news.

In creating the new website, we aimed for a cleaner look that is responsive to any browser resolution size and a design that we hope will simplify your web visit by allowing you to reach important applications with fewer clicks. We hope you will find the new website both visually pleasing and easy to use.

Among the improvements you will notice, we would like to highlight the following:

More keyword searches and clickable index numbers
Direct links to individual judge's pages
Quick links and courthouse information on the footer of each page

In addition to aesthetic and function changes, the court's website will not be hosted on an offsite server, which will allow for uninterrupted use in the unlikely event of a power outage at the courthouse.

Thank you and visit us at www.ilnd.uscourts.gov

KCBA Blog

1-25-2016; Clarification/Correction from Last Week's Lead Article; E-Filing of Civil Litigation Coming to an IL County Near You Next Year; USDC for the Northern Dist of IL Announces New Website and...