6-25-12; Is There Any “Discovery” in Illinois Workers’ Compensation?

We hear attorneys and some observers claim “there is no discovery” in IL WC. This urban legend is sort of right but also sort of wrong--we want to clear the air about it. We assure all of our readers there is “discovery” in IL WC but you have to understand the Rules and the IL WC Act to make sense of the concept.

When lawyers and claims handlers talk about “discovery,” they are referring to the civil litigation pretrial process of finding out what the other side’s claim might be. In typical civil litigation, for example, a motor vehicle accident, the parties are usually complete strangers to each other. The pretrial process of “discovery” allows either side to:

·         Ask for sworn answers to written interrogatories about relevant issues relating to liability and damages;

·         Ask for production of relevant documents and other written information to be used at a hearing;

·         Allow one party to demand admissions or denials of ultimate facts relevant to the claim;

·         Allows both parties to conduct “discovery” depositions of lay and expert witnesses to figure out what they might say at any hearing;

·         Allows both parties to get advance disclosures of evidence and witnesses to be presented at a trial.

The idea of discovery is to get to the strengths and weaknesses of each sides’ case and hopefully move the matter to settlement or hearing. In the Illinois WC system and many U.S. WC systems, there are limited opportunities for such “discovery” to take place. In fact, in most WC systems written discovery is greatly limited. In the IL WC system, if you don’t know the rules, the first time you may hear claimant’s story may be when they testify at any hearing. That sets up what we call “trial by ambush” because your attorney may not know what is coming at them until the parties sit down and try the claim. A wise risk manager and/or claims handler should be devoted to investigating fully and avoid surprises.

Why is the IL WC system like this? Isn’t it a scary thing when a witness tells their story for the very first time to an Arbitrator or hearing officer? Well, it was considered a way to save money and streamline the system. However, it also assumes employers are going to push for accident investigation and not wait until the last possible moment to act on and prevent accidental injuries.

How does that work? Well, the parties in a workers’ comp claim aren’t supposed to be strangers. In IL WC, there is a statutorily required 45-day reporting rule—the employer has to be made aware of the event or they can fight it on that basis alone. We have many clients who are ramping that rule forward to require accident reporting within the same shift or same 24-hour period. If the employee doesn’t report, some of our clients are disciplining the worker or even terminating. If you aren’t already doing so, we urge you to consider it. Even in union environments, we are seeing unions allowing for termination or discipline if the employee doesn’t timely report an accidental injury. If you want thoughts and comments on accident reporting rules, please send a reply.

Once learning of the event, it is incumbent on the employer to investigate, investigate and investigate. If you need questions or thoughts on thorough accident investigation, send a reply. If you don’t investigate a work accident report, you become the equivalent of a ship without a rudder—you are going to drift along and possibly run aground on the rocks. It is impossible to accurately reserve a claim, target MMI or return to work or make any financial sense of your WC claims without a thorough accident investigation.

Other than a thorough accident investigation, what other pretrial WC “discovery” tools are out there?

A.    Webcam recorded statements of claimant;

B.   Witness statements;

C.   Safety committee—supervisor review of accident;

D.   Nurse case management;

E.    Surveillance/security cameras;

F.    Medical histories;

G.   Web research;

H.   IME’s;

I.      Voc counselors;

J.    Pre-trials.

K.   The ”stip sheet” or request for hearing form.

All of these concepts allow an employer and your defense lawyer to learn about the pending claim in various ways. Most of the concepts are informal but can lead you to best understand if your reserves are accurate, your defenses have merit and how to best proceed in any IL WC claim.

After you have the initial accident report and a HIPAA-GINA compliant release signed by claimant (if you need one, send a reply), you then can move to the following tools to document/question any claim.

A.    Webcam recorded statements of claimant--If you get to it rapidly enough, you can “burn” a DVD of claimant in the right situation to document their account of the event. This creates compelling evidence if later versions arise or if the recorded statement doesn’t match the medical histories. We consider this option to create a strong incentive for ramped-up accident reporting requirements. If you demand timely accident reporting, you can then get these statements before claimant “lawyers up.” If you want our webcam questions, send a reply.

B.    Witness statements—in a serious claim, you will then have documentation needed to accept or deny any claim. Consider webcam statements of co-employee witnesses to confirm their future testimony.

C.   Safety committee-supervisor review—in a moderate to serious injury, you will go miles to documenting an event and buttressing any defenses if you go the extra mile.

D.   Nurse case management isn’t truly supposed to be a “discovery” tool but the medical information moving to the treating doctors, claimant, claimant’s counsel, the employer and insurance carrier/TPA has to be viewed as such.

E.    Surveillance/security cameras are unquestionably “discovery” tools that can be used to document the accidental occurrence and also be used to fight any dispute about MMI or return to work.

F.    Medical Histories--As we have told our students and readers, the best analysis to confirm or rebut any claim is to analyze the accident report vis a vis what claimants are telling the treaters. Treating doctors have sharp objects and may perform surgeries and other challenging care so a patient is usually likely to be very forthcoming in telling the doctors what happened to them.

G.   Web research—although this has become somewhat limited due to heightened security on many social websites, it still is one way to learn information about a claim, a doctor or witnesses.

H.    IME’s—like the histories to a treating doctor, what an IME doctor learns in the examination should be considered “discovery” and can assist in reserving, accepting or defending a claim.

I.      Voc counselors also provide “discovery” to veteran claims handlers and will give you background and details upon which to manage major WC issues.

J.     Pre-trials can be helpful for both sides to give their version of the claim with the hearing officer present—you can update reserves or hone defenses if your defense lawyer listens and learns from the process (and the claim doesn’t amicably settle).

K.    Last but not least, claimants’ counsels are supposed to fill out and complete a “stip sheet” or IWCC request for hearing form to get a hearing date. This form can provide the basis of disputes about TTD/lost time, medical bills, the supervisor to whom they assert notice of an injury was provided, any claim for penalties/fees and other issues.

We assure you all of these tools provide lots of information when and if they are used wisely. All risk managers, claims handlers and attorneys on both sides should be thoroughly aware of their nuances—our students and readers now understand there is lots of “discovery” in the process, if you have the right defense lawyers on your side.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.