Synopsis: Understanding Pretrial Discovery in IL Workers' Comp for All Sides.
Editor’s comment: We hear attorneys and some observers claim “there is no discovery” in Illinois workers' compensation. This urban legend is sort of right but also sort of wrong. I want to clear the air about it. I assure all of my readers there is “pretrial discovery” in Illinois workers' compensation but you have to understand the Rules Governing Practice and the Illinois Workers' Compensation Act to make sense of the concept.
When lawyers and claims handlers talk about “pretrial 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 later pretrial or 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; and
- 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 workers' compensation system and many U.S. Workers' Comp systems, there are limited opportunities for such “discovery” to take place. In fact, in most workers' comp systems written and oral pretrial discovery is greatly limited.
In the Illinois workers' comp 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 Illinois workers' compensation 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 Illinois workers' comp, 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. In my view, it is impossible to accurately reserve a claim, target maximum medical improvement or return to work or make any financial sense of your workers' comp claims without a thorough accident investigation.
Other than a thorough accident investigation, what other pretrial workers' comp “discovery” tools are out there?
A. Webcam or audio 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. Independent medical evaluators;
I. Vocational counselors;
K. The IL WC ”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 claim.
After you have the initial accident report and a Health Insurance Portability and Accountability Act and Genetic Information Privacy Act (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 or medical 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/third-party administrator 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 I have told my law 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. Vocational 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 Illinois Workers' Compensation Commission request for hearing form to get a hearing date. This form can provide the basis of disputes about temporary total disability/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—my students and readers should now understand there is lots of “pretrial discovery” in the process, if you have the right defense lawyers on your side.
Synopsis: Chicago Tribune Barbeques Billionaire Alderman Ed Burke’s Mishandling of Chicago’s WC “Defense” Program.
Editor’s comment: Understanding Billionaire Chicago Alderman Ed Burke is one of the most powerful political figures in this entire state and is married to IL Supreme Court Justice Anne Burke, I still feel it is important to read the Chicago Tribune’s Editorial Board’s criticism of his mishandling of the Chicago WC “Defense” program. Everything you read below is my opinion and to my understanding, I am entitled to my opinions. If you want to know how and why I feel Ed Burke is a billionaire, send a reply and I will lay out the math for you.
The Tribune Board noted the City misspends at least $100M a year every year on workers’ comp costs, based on a 2016 Inspector General report. I point out the actual number is basically impossible to discern. Some of the money is cloaked in Department budgets and some is in general funds. Billionaire Alderman Burke appears to hide it from prying eyes of other alderman, the Mayor and the City’s Inspector General. In short, only Ed Burke really knows what he is doing.
To Dream the Impossible Dream—trying to manage thousands of IL WC claims without any staff to do so.
To my understanding, there are over 3,000 pending IL WC claims filed by City of Chicago employees. The City has one person trying to ‘manage’ more than 3,000 expensive WC claims!! There is no one in City government who has the job title of WC claims handler/manager.
To my further understanding there is only one defense lawyer—just one—who is assigned to try to handle all of the thousands of claims that make up our City’s WC litigation. In my view, there is literally no chance, none, that one person could handle such an impossible workload.
Understaffed defense programs insure the City of Chicago keeps paying and paying, even the most frivolous and unfounded WC claims.
Why Does Ed Burke Dole Out Over $1B in WC Benefits to City Workers Each Decade?
In my view, Illinois State and local governments are a corrupt “benefit-ocracy.” There are many paths where our tax dollars are quietly doled out in big gobs to government workers to get their allegiance and loyalty in elections. Hilariously unethical and questionable workers’ comp claims management is just one of the many ways this happens. Police and fire disability pensions and benefits are another way—if you want examples of such abuses, send a reply. The biggest kahuna of your tax dollars flowing to government workers are the unfundable fake government pensions and basically free lifetime healthcare benefits our retired government workers receive. The State of Illinois is about a quarter TRILLION in debt from the borrowing to fund the truly unfundable fake gov’t pensions. I am not sure why so many folks were mad about welfare benefits back in the day when gov’t pensions clearly are giving out our money without any basis to do so.
If you were going to retire and receive double or quadruple income in retirement as compared to what you made while working, would you be loyal to the people who got you that largesse?
If there was money for all of it, fine. Trust me, folks, they are borrowing and borrowing to keep this version of the RMS Titanic on the ocean. At some point, our State and local governments are going to tip up, crack apart and sink rapidly, like the old cruise ship did in 1912.
If you want to read the Chicago Tribune editorial, take a look: http://www.chicagotribune.com/news/opinion/editorials/ct-edit-chicago-burke-worker-comp-20180809-story.html
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Workers' Compensation 101:
Tips and Tricks for Navigating the Illinois WC System By Shawn Biery of Keefe, Campbell, Biery & Associates
Next week--Aug. 28th, 2018
11:30am - 1:00pm
This presentation will assist in allowing you to gain a greater understanding of the IL Workers Compensation system and tips to understand what occurs during a workers compensation claim.
Join attorney Shawn Biery of Keefe, Campbell, Biery & Associates for a webinar regarding Work Comp 101. Shawn will discuss key terms & terminology, issues you may encounter during claims, what to look for to comply with the IL WC Act and a variety of topics which will increase your knowledge of workers compensation and assist in claim handling, investigations, setting up handling plans in advance, and overall steps you can take to manage your claims, even before they are filed with the Illinois Workers Compensation Commission.