1-15-13; IL Law Refresher on Two-Party Consent in Recordings; SMART Act and Impact on You; Bumping Boats Don't Bring Maritime Liability; IL Sup. Court Limits Venue in Asbestos Claims and more

Synopsis: Refresher on IL Law about Two-Party Consent to Smart-Phone Recordings in Illinois. Is there a double standard from the Petitioner bar? Analysis by Shawn R. Biery, J.D., MSCC


Editor’s comment: We recently had an inquiry regarding a Petitioner, at the request of his counsel apparently, surreptitiously recording the interaction and discussions during an IME exam. It is unclear to the writer if the M.D. didn’t put 2 and 2 together until after the exam as he did not object and there was clearly no discussion of the recording of the exam by Petitioner before or during the exam.


We have had numerous discussions with opposing attorneys over the years regarding obtaining recorded statements from claimants as part of the initial or follow-up accident investigation. The majority of the members of the Plaintiff/Petitioner bar in IL WC advise their clients to avoid voluntarily providing recorded statements, even if counsel is on the call or recording. For our readers and claims handlers from other states, we have no Rule or portion of our IL WC Act that can “force” a claimant to provide a written or recorded statement, even if they have counsel present on the recording. It is one of the factors leading to what we call “trial by ambush” in our IL WC system—we don’t truly know what a claimant is going to say until they testify under oath.


While we understand and share an overall general dislike of being recorded, there have been multiple occasions where a simple and relatively brief recorded statement, as part of an accident investigation, would have cleared up numerous questions regarding the claim. In some instances, a refusal to participate in a recorded statement appeared in this writer’s view to be nothing except a refusal to be held to one version of events regarding a claim. Arguably the refusal to allow complete investigation should justify a subsequent refusal to issue WC benefits if questions regarding the claim cannot be answered alternatively. In our view, a claimant should participate in a short and simple records with their counsel on the agreed call/recording to “protect” them if they were to stray too far afield. Everyone should then receive a copy of the recording.

There was also the question of legality and as a refresher to the M.D. performing the IME referenced above and our readers, a reminder serves to confirm Illinois is a two-party-consent state to recordings so Illinois makes it a crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties to the conversationThe law defines an "eavesdropping device" as "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." 720 Ill. Comp. Stat. 5/14-1, -2. In our view, cell/smart phones are included. In addition to subjecting you to criminal prosecution, violating the Illinois wiretapping statute can expose you to a civil lawsuit for damages by an injured party.

You may have noticed recent articles in the news regarding recording public activities and this article is not purported to cover general public activities as you generally are permitted to photograph or record video of people without permission in most public places as part of an overall right to take photos or videos/recordings with sound in public places. Any attorney who suggests their client record a private meeting should make sure their advice follows the prevailing state law and confirms the need for consent.

A simple reading of Section 12 of the WC Act provides no guidance on recording an IME exam so it is simply based upon the agreement of the parties—we would argue an individual who refuses to consent to an IME if the physician performing it does not agree to recording is subjecting themselves to denial of the right to ongoing WC benefits due to the refusal to reasonably submit to the exam as stated under Section 12 of the Act. How our IWCC might rule on the issue is anyone’s guess but isn’t worth the time and delay needed to fight. On the other side, we could foresee doctors wanting to protect themselves if claimants all start routinely doing this—the IME doc might want to start recording the IME also as protection against an edited version of the exam.

This article was researched and written by Shawn R. Biery J.D., MSCC and you can contact him directly with any questions at sbiery@keefe-law.com.




Synopsis: MEDICARE UPDATE: President Obama Signs SMART Act into Law. More analysis from Shawn R. Biery, J.D., MSCC.


Editor’s comment: As we reported recently, provisions from the SMART Act were added to other legislation and passed both the House of Representatives and Senate as the legislative sessions were ending. On January 10th, 2013, the legislation was signed and becomes law. In a press release, the White House Press Office indicated the new law in part amends certain rules under which Medicare is a secondary payer to specified third-party payers. While the law being signed is only the start as it will require the drafting of Federal Regulations and some Administrative Procedures in order for it to take effect, it will now be created to clarify specifics, in general we should have some additional certainty in handling for some areas of concern including with:


  • New Conditional Payment Process
    • Creates a New Conditional Payment Resolution Process which requires Notice to the Secretary of Health and Human Services advising the Secretary of a potential Settlement, Judgment, or Award. The claimant or applicable plan may, at any time beginning 120 days before the reasonably expected date of a settlement, judgment, award, or other payment, notify the Secretary of HHS that a settlement is reasonably expected and the expected date of that settlement.
    • The Secretary of HHS will allow access to information on the items and services provided by Medicare to interested individuals, authorized family, representatives, and to applicable plans through a website which requires a password to gain access.
    • By obtaining a statement of reimbursement amount from the website during the protected period (a period of 65 days, except that such period may be extended by the Secretary for an additional 30 days if the Secretary determines that additional time is required to address claims for which payment has been made), as long as the related settlement, judgment, award or other payment is made during such period, then that last statement of reimbursement amount which is downloaded during such period shall constitute the final conditional amount subject to recovery.
      • If there is a disagreement as to the amount of a conditional payment requested, the individual, representative, or plan must provide documentation explaining the discrepancy and a proposal to resolve the discrepancy and the Secretary must then act within 11 business days. Otherwise the initial proposal must be accepted. The Secretary shall determine whether there is a "reasonable basis" to include or remove claims on the statement of reimbursement.
      • Secretary must also promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal such a determination. The individual furnished such an item or service shall be notified of the plan's intent to appeal such determination.


  • There will be a Threshold for Exemption from Conditional Payment Reimbursement
    • An annual single threshold amount for a given year shall be set by the Agency. This amount shall equal the estimated cost of collection incurred by the United States (including payments made to contractors) for a conditional payment arising from liability insurance (including self-insurance). Conditional payment amounts below the threshold will not be pursued by Medicare.
    • Reimbursement of conditional payments and mandatory reporting shall not apply with respect to any settlement, judgment, award, or other payment by an applicable plan arising from liability insurance (including self-insurance) and from alleged physical trauma-based incidents (excluding alleged ingestion, implantation, or exposure cases) constituting a total payment obligation to a claimant of not more than the single threshold amount calculated by the Secretary for the year involved.


  • Mandatory Insurer Reporting Fines and Penalties
    • The Bill replaces Mandatory Insurer Reporting penalties language requiring fines and penalties for non-compliance with a discretionary standard. Thus insurers and reporting entities ”may" be subject to a civil money penalty of up to $1,000 for each day of noncompliance with respect to each claimant.
    • The HHS Secretary must publish a notice in the Federal Register soliciting proposals for the specification of practices for which sanctions will and will not be imposed, including not imposing sanctions for good faith efforts to identify a beneficiary under an applicable entity responsible for reporting information.


  • Three Year Statute of Limitations to File Claim for Reimbursement
    • Instead of the current unknown, now there will be definable Statute of Limitations to the Medicare Secondary Payer Act and an action may not be brought by the United States with respect to payment owed unless the complaint is filed not later than 3 years after the date of the receipt of notice of a settlement, judgment, award, or other payment made.


This new legislation will at the very least give some stated guidelines with regard to Conditional Payments and I would argue from the legislative discussions regarding the implementation of the changes, the fact that the Federal Government is agreeing there is some sanity in having statutes of limitations, this may be the first step in bringing sanity to closure of cases with very limited arguable future medical and hopefully the fight continues to gain some additional sense in the need for full MSAs on claims where prospective medical care may be years if not decades away and the six-figure MSA proposals create an enormous barrier to final settlements.


This article was researched and written by Shawn R. Biery JD, MSCC and you can contact him directly with any questions at sbiery@keefe-law.com.




Synopsis: Dangling Foot Didn’t Bring General Maritime Liability for Bumping Barge/Boat Owners. Research and review from James F. Egan, J.D.


Editor’s comment: In a Rule 23 decision in Ballard v American Commercial Lines, Inc., et al,  our Appellate Court affirmed no duty of care was owed to longshoremen when injured from routine bumping barges and boats under general maritime law.


Plaintiff Ballard was employed by R & G Maintenance and Welding Services, Inc. Among Ballard's job duties was to inspect the hulls and decks of barges for cracks or holes, patching and welding them as needed. On the date of injury he suffered injuries while repairing a docked barge. Plaintiff Ballard was lying on his stomach on top of a walkway area with his head, right shoulder, right arm and foot, hanging over the side of the barge while welding. His right foot was crushed when the stern of the barge he was repairing came into contact with the bow of another barge when moving water caused the barges to shift position.


Plaintiff filed a complaint seeking damages for the injuries he allegedly suffered, alleging Defendants were negligent under Illinois common law and under the Longshore Harbor Workers’ Compensation Act (LHWCA). Plaintiff also named the owner of the barge he was working on American Commercial Barge Lines, Inc.; the owner of the tugboat which disturbed the water, Louisiana Dock Company, LLC and its crew; Louisiana Dock Company in its capacity as the owner of the dock and American Commercial Lines, LLC, claiming each of the defendants were negligent for various reasons.


Defendants filed a motion for summary judgment, arguing they owed no duty of care to Ballard under the LHWCA or under general maritime law. The trial court granted defendants' motion for summary judgment, finding the defendants did not participate in the repair operations, nor did they control the repair operations and that Ballard had failed to identify the defendants' duty under the LHWCA or general maritime law. Also, the defendants did not supervise Ballard, his employer R & G, or the repair work being performed. Evidence revealed Ballard was injured because he was acting in an unsafe matter and R & G was an independent contractor which was therefor was responsible for Ballard’s supervision.


Ballard’s motion for reconsideration was denied and Ballard appealed the court’s judgment. In his notice of appeal, Ballard stated he was appealing from the trial court's order granting summary judgment for Defendants in count I, the general maritime law. Ballard affirmed he waived any claims against Defendants under the LHWCA, because the Act is a longshoreman's exclusive remedy for negligence claims against a vessel. While Ballard acknowledged the exclusive remedy provisions of the Act precluded an action against the barge owner under the general maritime law, he alleged he may bring a general maritime action against the towboat and its owners because he was not working on the towboat when he was injured and the statute contemplates the exclusive remedy provisions apply only to vessels a longshoreman was working on.


The Appellate Court found, however; Ballard did not cite any authority in support of his claim and found the exclusive remedy provisions of the Act applied equally to the towboat involved in the incident, as well as the barge, citing Bongiovanni v. Howlett as well as Section 905(b) of the Act. Since the towboat was a vessel connected to the injuries suffered by Ballard, the Appellate Court held the LHWCA was the exclusive remedy provided by Congress for Ballard's claims against the owner of the towboat and the towboat personnel. As a result, the Appellate Court concluded it did not have jurisdiction for claims against the owner of the towboat, or jurisdiction over the towboat crew under the general maritime law and the trial court's judgment for defendants must be affirmed.


Plaintiff did not appeal from that judgment and therefore forfeited any claims against the owners of the barge and their employees, any claims against owner of the towboat, as well as the towboat crew. The Appellate Court further found Ballard had failed to present any evidence that towboat owner or its employee had a duty to moor the barges or monitor mooring lines in a manner to avoid them from bumping during repair operations. Instead, the record showed barges at the dock regularly come in contact with one another. Based on de novo review of the record, the appellate court held Ballard had failed to establish the dock owner or its employee had a duty to monitor mooring lines during repair operations to prevent barges from bumping into each other. The judgment of the trial court was affirmed in all respects under the general maritime law, holding Defendants did not owe a duty of care to an injured longshoreman to monitor mooring lines during repair operations.


This article was researched and written by James F. Egan, J.D. Please feel free to contact our maritime defense specialist at jegan@keefe-law.com.




Synopsis: Will Illinois Courts Stop Pulling in Claims from All Over the World? Analysis by Sean C. Brogan, J.D.


Editor’s Comment: From what we can tell, the Illinois civil justice system keeps lots of law firms from all over the U.S. busy working here. We don’t feel that is a good thing for any number of reasons, the first of which is the highly political atmosphere present when these state judges run for office and get lots of donations from folks who have nothing to do with our state other than to win favor in court. If you were to Google®-search the Madison County Asbestos Docket right now, you would find that county has several thousand asbestos claims currently pending each month. If all those claims were to be tried during a single year, every adult in the county would sit on several jury panels.


In a 2010 report, the U.S. Chamber’s Institute for Legal Reform started its study of this county’s courts by noting:


The Madison County asbestos litigation story involves the creation of a national clearinghouse for asbestos malignancy claims by first suspending normal rules about which courts should hear these cases, and second, by adopting procedures to facilitate the “processing” of large numbers of those claims. These factors combine to facilitate the process of extracting maximum value from the defendants. The resulting economics, in turn, drive a litigation perpetual motion machine where, so long as the rules are relaxed, more and more cases will be drawn to the jurisdiction. Whether Madison County asbestos litigation will continue along its current course is an unwritten chapter; but, as it stands now, the story is a cautionary tale about the power of procedural “innovations,” the ability of a judge or judges in one location to impact the entire national system of litigation, the extreme mobility of asbestos claims and the tyranny of economic incentives.


For the first time, we have seen our Illinois Supreme Court take action to enforce traditional venue rules and make Plaintiffs bring their claims where they arose. In Walter Fennell v. Illinois Central Railroad Company, No. 113812, issued December 28, 2012 various plaintiffs sought recovery for injuries they allegedly sustained as a result of alleged exposure to asbestos while employed by a railroad company. They filed suit in Mississippi and the matter was dismissed without prejudice. Several years later, Plaintiffs filed suit yet again but this time in the Circuit Court of St. Clair County, Illinois—please note St. Clair County is right next door to Madison County, IL. Via interrogatory, Plaintiff was asked to identify the specific locations where he was exposed to asbestos to which he replied “Plaintiff was mostly in and out of Jackson, Mississippi to Gulfport, Louisiana and McComb Mississippi.” Defendant filed for dismissal contending Mississippi and not Illinois was the most convenient forum to try the case. The St. Clair Circuit Court denied the motion and Defendant appealed.


The Court noted jurisdiction was proper in both Mississippi and Illinois pursuant to the Federal Employer's Liability Act as it was undisputed Defendant did business in both states. However, the Court invoked the doctrine of forum non conveniens, and held the Circuit Court of St. Clair County abused its discretion in denying Defendant's motion to dismiss.  


The doctrine allows a court to decline jurisdiction over the subject matter and the parties if it appears another forum can better serve the convenience of the parties and the ends of justice. The Court analyzed several private and public interest factors noting the following: Plaintiff resided in Mississippi; the alleged exposure occurred in Mississippi; the vast majority of identified witnesses were located in Mississippi and the residents of Mississippi would have a greater interest in having the matter resolved in their state.


Ultimately, the balance of factors favored dismissal in favor of a Mississippi forum. We hope to see more such rulings and perhaps Madison County can go back to being a venue for claims that arise in that area and not an arena to decide claims from across the country.


This article was researched and written by Sean C. Brogan, J.D. He can be reached for questions or comments at sbrogan@keefe-law.com.