1-4-2016; KCB&A Litigation Management Secrets Exposed!; Shawn Biery on WC Setoffs and Lien Recovery; LIlia Picazo on new and scary OSHA Ruling and more

Synopsis: Keefe, Campbell, Biery & Associates Litigation Management Secrets Exposed!! Learn How We Close WC and GL Claims Faster than Other Defense Lawyers.


Editor’s comment: We get asked and asked—we want our readers to understand our best approach to closing all WC and GL claims much faster than our competition. These simple steps are the optimal path for smoothly and rapidly close current and future assignments.


Part One—Closing Workers’ Comp Claims This Week, Part Two--General Liability/Motor Vehicle/Employment Law/Food Claims Next Week


In the work comp arena, claims handlers need to work with defense counsel on two preliminary issues.


a.    Is It Compensable?


If it is not compensable, in non-litigated claims, our KCB&A defense team are happy to provide you case law or citations to the WC Act and Rules to let you tell claimant why the issues are not covered under work comp. In litigated claims, you want the KCB&A team member to start the war and win it—we are happy to highlight the evidence needed to prevail in front of the hearing officer/arbitrator.


b.    If Compensable, How Do We Get Claimant to MMI?


If the claim is compensable, we assume you have accepted it and you are paying benefits. In Illinois and the other four states we cover, you main goal has to be getting medical care to a close so claimant is at MMI. It is very, very hard to close WC claims with treatment, disputed or not, still ongoing. Our favorite tools to cut medical care are utilization review (or UR) and/or independent medical exams (or IMEs). While IMEs have their role in managing litigation, we consider UR to be faster and a stronger tool to have claimant reach MMI because the process directly reaches out to a treater to confirm care is being denied and lets them “appeal” denial to a medical specialist. Either way, if you need help on getting a claimant to MMI, send a reply.


Having Worked to Get Claimant to MMI, What is the Next Step to Rapid WC Claim Closure? Our Vote Never, Ever Wait for the Other Side to Make a Demand, Evaluate/Cogitate/Work Up for Settlement and Make a Fair and Reasonable Offer


We feel many of our competitors make a seminal mistake to tell you they are asking the other side for a demand. The other side of the WC lawyer matrix isn’t always interested in closing cases. Their goal is to have a large book of business where existing claimants send them other business/claimants. If you ask them for a demand, they may view that as a sign of weakness and routinely ask you for the moon, sun and stars. Once they ask for way-too-much, you now have to rein them in to less. Why start out in that fashion?


In our view, you are way better to do your homework and figure out a fair middle-ground that we can justify to one of Illinois’ very sharp, professional and reasonable WC Arbitrators or an Indiana Hearing Member. If the other side won’t take the settlement based on an email from your lawyer, consider telling/authorizing your defense lawyer to set up a pre-trial before an Arbitrator or Hearing Member who may tell the Claimant attorney to take it or ask your defense attorney to bump it up a little but either way, the hearing officer will try hard to get the claim to close. Most IL WC Arbitrators or IN Hearing Members don’t want to hear the boring/whining claim and will drive hard to bring the parties together in a favorable middle-ground settlement.


Please Also Remember—Don’t Have Defense Counsel Simply Make a Written Offer, Send Draft Settlement Contracts to Push Hard to Close


If the offer is fair and reasonable, when your defense attorney writes it up and puts it on contracts, you get to see it to confirm your authority and insure everything is in order. The devil can be in the details. When you approve and the draft lump-sum contracts are sent to Claimant’s counsel, the other side can deduct their fees and costs and send them to Claimant for signature. The great advantage to doing so is Claimant can tell precisely what they will receive and sign off on it. This is a win-win for all sides and brings many WC claims to rapid closure.


The defense team at KCB&A has other various tactics and concerns to bring litigated WC claims to closure. If you have questions or concerns, send a reply or post it on our award-winning blog.




Synopsis: Important Ruling for Decision Makers Regarding Setoffs and Lien Recovery…or when making decisions while implementing cross coverage policies.
Analysis by
Shawn Biery, J.D., MSCC.


Editor’s comment: While not new information, this can guide those who need to determine settlement when a lien or other causes of action are still in play. In Acuity v. Decker, 2015 IL App (2d) 150192 issued December 23, 2015, Plaintiff Decker was injured in motor vehicle accident while working for his employer and received workers' compensation benefits through the employer's worker's compensation carrier. He eventually also reached settlement with insurer for third-party tortfeasor (other driver), for full policy limit, and Plaintiff paid worker's compensation insurer fromthat settlement the amount required to satisfy workers' compensation lien. Plaintiff also filed UIM claim with his employer's auto insurance carrier which also had coverage and since employer's auto policy did not treat workers' compensation as an element of loss under a "Liability Coverage Form", Plaintiff was allowed to present all elements of loss in UIM arbitration, including those elements paid through workers' compensation with the employer auto carrier only having those elements subject to the set off for the amount Plaintiff actually recovered on his workers' compensation claim and on his claim against other driver.


Factually, Defendant Decker suffered personal injuries in an automobile accident while working for his employer, Groot Industries, Inc. (Groot) and Decker received workers’ compensation benefits totaling $350,942 from plaintiff, Acuity, which was Groot’s insurance carrier. Decker settled his claim against USAA, the insurer for Carol Hunter, the third-party tortfeasor, for the full policy limit of $50,000, and Decker paid Acuity the portion of that settlement required for satisfaction of the workers’ compensation lien totaling $37,067.48. Decker filed an underinsured motorist (UIM) claim with Acuity who was also Groot’s automobile insurance carrier. Acuity filed a declaratory judgment action against Decker and Groot, contending that it was entitled to a set off for the entire amount it paid to Decker on the workers’ compensation claim, plus the entire amount that Decker received from USAA, and that certain elements of loss for which Decker had been compensated through workers’ compensation were precluded under Groot’s automobile insurance policy.


The parties each filed motions. In its declaratory judgment complaint, Acuity sought a judgment that the UIM coverage from which Decker sought compensation precluded certain elements of loss for which Decker had already been compensated. Acuity contended that Decker was not allowed to make a claim for lost wages, past medical expenses, and future medical expenses on his UIM claim. Acuity also contended that it was entitled to a set off for the full settlement that Decker received from USAA, including the $37,067.48 Decker paid Acuity from the settlement, plus the full amount paid for the workers’ compensation claim. Acuity sought a total set off of $400,942. Decker argued there should only be credit for the amounts remaining after the repayment of $37,067.48 was taken into account and credited to the lien and Decker argued he should be able to seek damages for all elements subject only to the remaining set off.


Acuity’s motion was denied, but Decker’s was granted with the court finding that (a) Decker was allowed to present all elements of loss in his UIM claim, even though he had already been compensated for certain elements through workers’ compensation, and (b) Acuity was not entitled to a set off for the full settlement with USAA, because Decker was statutorily required to pay 75% of the settlement toward the workers’ compensation lien. The trial court concluded that the total set off that Acuity was entitled to was $363,874.52. After Acuity timely appealed, the court here affirmed for the following fairly simple reasons:


1)    COVERAGE:  Where ambiguous, insurance coverage is construed liberally in favor of coverage.                  

a.    Pertinent to the present case, the policy noted “No one will be entitled to receive duplicate payments for the same elements of loss under this Coverage Form or any Liability Coverage Form.” However the policy also later stated “Except in the event of a settlement agreement, the Limit of Insurance for this [UIM] coverage shall be reduced by all sums paid or payable:

                                          i.     (a) By or for anyone who is legally responsible, including all sums paid under this Coverage Form’s Liability Coverage.

                                        ii.    (b) Under any workers’ compensation, disability benefits or similar law.


2)    SET OFF:  The Court noted that the Illinois Supreme Court has noted the underlying purpose of UIM coverage is to “place the insured in the same position he would have occupied if the tortfeasor had carried adequate insurance. ”  

a.    UIM coverage was not designed to give either the injured party or the insurer a windfall and if they were to provide set off for more than the statutory lien amount, Acuity would be essentially allowed to count the $37,067.48 twice as part of the “sums paid” under Acuity’s UIM policy or the “amounts actually recovered” under the statute.


It appears Acuity takes issue with any reduction in the $50,000 however in actuality, the full $50,000 was set off because in receiving the $37,067.48 from Decker, it no longer had paid that $37,067.48. (As noted—placing each in the position he or she would have occupied).  Since Acuity’s policy does not treat workers’ compensation as an element of loss under a “Liability Coverage Form”, their position was not well founded. It appears the court rightfully concluded Decker should be allowed to present all elements of loss in the UIM arbitration, including those elements paid through workers’ compensation. However, those elements will be subject to the set off for the amount Decker actually recovered on his workers’ compensation claim and on his claim against Hunter.—that total now being $363,874.52.  


It would appear that the biggest takeaway after revisiting case law on lien reimbursement under Section 5 of the IL WC Act is that when one chooses to obtain multiple elements of insurance coverage, it would be wise to include language in all policies that recovery under one policy precludes recovery under the others—and frankly including language which verifies the exclusivity of the WC remedy for employees should also be  a consideration if possible. This article was researched and written by Shawn R. Biery, J.D. MSCC. You can reach Shawn via email at sbiery@keefe-law.com or via phone at 312-756-3701 with any questions regarding this case or general questions regarding workers' compensation liens, discussion on obtaining coverage or overall litigation coverage.




Synopsis: A Slippery Slope Around Due Process! OSHA Administrative Law Judge issued a precedential ruling that allowed a claim for enterprise-wide abatement beyond specified violations in OSHA citations. Analysis by Lilia Picazo, J.D.


Editor’s Comment: On December 7, 2015, Administrative Law Judge Carol A. Baumerich issued a ruling reasoning a provision in the OSHA Act authorizing “other appellate relief” permits the U.S. Department of Labor grounds to seek enterprise-wide abatement to proceed to trial on said issues. With respect to ALJ Baumerich, we disagree.


On November 2014, OSHA cited Central Transport, LLC for 14 workplace safety and health violations at a shipping terminal in Billerica, Massachusetts. In its complaint, OSHA alleged Central Transport failed to comply with agency standards for the safety of industrial trucks at all of its locations. OSHA requested an order compelling Central Transport to comply with safety standards at each location and proposed a fine of $330,800.


On December 2014, Central Transport filed a notice to contest the motion with the OSHA Review Commission asking it to strike OSHA’s claim on the basis the OSHA Act did not permit enterprise-wide abatement. Judge Baumerich denied Central Transport’s motion and held a provision in the OSHA Act authorizing “other appellate relief” permitted the Department of Labor to lodge claims for enterprise-wide abatement.


OSHA’s ruling is the first decision to allow enterprise-wide abatement beyond the specified violations mentioned in the issued citation. Put simply, OSHA can now seek to require a company abate hazards that may be present at a site or multiple sites that have not yet been inspected.


This ruling is troubling for business observers in many respects. First, it does not pass the “smell test” for complying with Respondent’s due process rights. In fact, it allows OSHA to blindly lodge claims without actual knowledge of any violations. Generally, OSHA issues citations, which advises an organization of the specific violations OSHA claims it violated. With this ruling, OSHA can proceed on one violation and request a trial on company-wide abatement, despite the fact it has not inspected any other facilities. Second, it subjects Respondent to additional discovery without any allegations of what specific violations there are at other unrelated facilities.


Some important lessons from OSHA’s ruling:


1.    Review and stay up to date with your company’s or industry’s most common violations;

2.    Communicate all health and safety patterns or challenges throughout all facilities; and

3.    Implement and provide continuous up-to-date training to all levels of management and employees to regularly inspect in order to avoid a future violation.


With OSHA’s new ruling, we would not want to see companies get hit with hefty fines over violations that could have been prevented had the proper protocols been set in place.


This article was researched and written by Lilia Picazo, JD. You can reach Lilia 24/7/365 for questions at lpicazo@keefe-law.com.