1-3-12; No one was safe when the legislature was in session—lots of their skullduggery took effect yesterday

Here are a few of the new laws that just went into effect for all Illinoisans to now deal with:

·         Safe Patient Handling in Hospital and Healthcare facilities: Illinois' Public Law 97-0122 amends the Hospital Licensing Act to address safe patient handling policies, setting forth definitions and requirements with regard to strategies intended to control the risk of injury to patients and staff. What rhymes with “Patient Fork-Lift?” The new amendments, which went into effect yesterday, represent the first effort in Illinois to assure people with disabilities who need to be physically moved by hospital staff are protected. The amendments protect hospital nurses and all health care workers. Hospital patients are to now be informed of all the ways in which they may be lifted during their stay in any hospital facility. Restriction of lifting must be achieved to the extent feasible with existing equipment and aids while manual handling or movement of all or most of the patient’s body weight is to be done only during emergent, life-threatening, or otherwise exceptional circumstances. We are certain these protocols are going to limit work injuries among affected workers. Some of the other provisions include staff education and training and a procedure for a nurse to refuse to perform or be involved in handling or movement the nurse believes in good faith will expose the patient/resident, nurse or other health care worker to an unacceptable risk of injury without fear of retaliation. We recommend all hospital risk managers consider disputing unsafe lifting injuries as violations of enforced safety rules. We also feel it should be a lot easier to bring nurses and other workers back to “light duty” because all hospital work should now be “light-duty.”

·         Of the Government, by the Government and for the Government: IL HB 2590/PA 97-0380 prohibits any unit of local government or a county sheriff (formerly only the State) from contracting with a private entity to operate a correctional facility and thereby potentially save taxpayers any money. We have no idea why the IL State legislature felt compelled to hamstring local government units in managing prisons and jails but something makes us feel the hyper-aggressive Illinois state employee unions might have something to do with it. Until this law is repealed or taxpayers find out what is happening and vote to stop it, we assure our readers the Menard Correctional Center “scandal” with millions in taxpayer monies being paid as WC benefits to IL prison guards and other prison staff for “non-accident accidents” cannot be prevented by replacing uncontrollably inefficient government prison managers who also file lots of major WC claims and get six-figure settlements we all pay for.

·         Disability Definition expanded in the Illinois Human Rights Act. In HB 3010/PA 97-0410, the definition of discrimination in public accommodations now include mental, psychological, or developmental disabilities, including autism spectrum disorder. This impact of this new law is going to have to be on a wait-and-see review. We don’t think it will be major but one never knows.

·         Jury Duty: In HB 1317/PA 97-0436, our Legislature, in its wisdom, exempted people who have a total and permanent disability award from serving on jury duty. We again consider this one of the weirder state laws in our weird state but we are fairly confident the defense industry does not want T&P claimants to be on most juries anyway.

·         Siss, Bam, Boom--Illinois Tolls for Autos have Skyrocketed: We were less-than-thrilled yesterday to note the nearest tollbooth to your editor’s house now charges a cash toll of $1.90 for cars to travel past. That is a shocking amount of money to pay for highways that initially were to charge tolls to pay off the bonds that allowed them to be built. Obviously, as the State of Illinois is hemorrhaging red ink and has very limited ways to put its hand into your pocket to seek new money, the spiraling tolls were an easy way to sock-it-to all of us. We will have to wait and see if drivers fight to find alternative routes and avoid the new government gouge on our tollways.

1-3-12; Welcome to 2012, Everyone. New laws, new challenges for Risk, Safety and Benefits Managers in this Great State of Ours

As they said in the movie Talladega Nights®: “Coming at ya, like a spider-monkey!!” In no particular order, here are some odd things we may have to adjust to in the New Year to come:

A.    Hospital risk managers and insurers have to be wildly challenged to read of the new Appellate Court ruling in Caburnay v. Norwegian American Hospital, et. al. issued on December 23, 2005. Dr. Caburnay was an anesthesiologist and entered Norwegian's lobby through the emergency room doors and walked down a corridor to an elevator bank containing two elevators. He was carrying an umbrella in his right hand and a duffel bag over his left shoulder. The hospital had placed a single six foot by ten foot rubber and fabric mat in front of both elevators to protect its floors and to prevent slipping. That mat, or one similar, had been used intermittently in front of the elevators for approximately six months. As Dr. Caburnay approached the right elevator, he walked onto the mat, pushed the elevator call button, and stepped backwards. As he did so, he fell backwards and the back of his head and neck struck a couch adjacent to the elevator. Caburnay fractured his cervical spine, instantly rendering him quadriplegic.

If any novices among our readers aren’t sure, the insurance reserves and/or trial value of a personal injury claim involving a physician who became quadriplegic is well into the seven-figure range, if the doc and his attorney can get the claim to a jury on the issue of negligence. The problem hospital safety and risk managers struggle with mightily is how doctors want to be members of hospital staff and bend over backward to get surgical privileges to then immediately “turn on the hand that feeds them” if they suffer injuries. Sometimes doctors are considered employees of the hospital and thereby eligible for WC benefits; more often they are considered independent contractor and able to sue the larger institution for negligence. We sometimes wonder if hospitals couldn’t require doctors to obtain their own liability insurance coverage for themselves, sort of the like car rental companies offer their renters insurance to use the cars.

The problem for Dr. Caburnay is a hospital surveillance video indicates immediately after Dr. Caburnay fell, several Norwegian personnel came to Caburnay's assistance. A backboard was placed on the mat and Dr. Caburnay was placed upon it. Staff members wheeled a gurney onto the mat, lifted Dr. Caburnay onto it, and carried him away. The video does not show Caburnay's feet or the portion of the mat underneath his feet. Caburnay did not look at the mat, either before or after he fell, because he was looking at the elevator. From our review of this decision, there are no other witnesses who appear to support the “fold-in-the-mat” theory of liability.

When he testified, Dr. Caburnay claimed he fell due to a fold in the mat that he didn’t see and could only “feel.” For that reason, the Appellate Court reversed summary judgment against the hospital and the whole thing will now go to a jury. While we generally agree with the Court’s ruling, we note Norwegian American Hospital is a small inner-city facility that works very hard to keep itself afloat. They have been in business since 1894 and operate in one of the most diverse hospital settings any of our readers might imagine. We sincerely hope this claim can be resolved without major financial damage to this organization. To read the ruling, go to:

http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/December/1101740.pdf.

B.    Someday, before we all retire, we certainly hope the 2011 Amendments to the Illinois Workers’ Compensation Act are going to be put into full effect!!!

Please note the 2011 Amendments to the Illinois Workers’ Compensation Act were passed by both Houses of the Illinois legislature waaaaaay back on May 28, 2011. Our Governor signed the law and put it into place in the west suburbs of Chicago waaaay back on June 28, 2011.

So what is missing?—three letters: “PPP”!!!! One of the carrots for the new law everyone on the defense side was promised were Preferred Provider Programs. The last step was approval of the various provider programs by the Illinois Department of Insurance. We also note there have been PPO’s or preferred provider organizations licensed and operating across Illinois for decades—how long could it possibly take for the Dep’t of Insurance to approve PPP’s that are effectively the same concept?

We note it took months for the brain trust to issue the one-page “opt-out” form that has any number of words in it that have to be challenging for lots of workers to understand. But even that was issued at least sixty-ninety days ago and nothing new on final approval of PPP’s.

Well, we all have to remember this is what one of our readers called “The People’s Republic of Illinois” and no one truly understands workers’ comp anyway. We are starting to feel there are secret political or administrative forces afoot to try to forever stall, delay or otherwise block the concept. Maybe the forces of ITLA will get together and march into their friendly courtrooms and see if they can mount a constitutional challenge to the concept. Either way, we wonder if our Illinois State Chamber is going to have to file a mandamus action to get the Dep’t of Insurance off of square one and start to bring the savings to Illinois business. We will keep everyone posted if we learn anything new.

C.   Finally, we saw a recent memo to the industry from Illinois State Chamber President Doug Whitley about the new concept of Live Healthy Illinois. In his missive, Doug encourages all Illinois businesses to start to get your troops working out, eating healthier and living better. We strongly agree with every word Doug wrote—please take a look online at: http://ilchamber.org/wp-content/uploads/2011/09/Live-Healthy-Illinois-2012-Pres-Message-12-19-11.pdf

Our message to all of our readers in the risk and safety industry—we may be able to shield your organization from WC liability for injuries occurred during normal workouts with a simple form that confirms their activities are voluntary. The idea is to use the legal concept outlined in Section 11 of the Illinois Workers’ Compensation Act. The same form can be used for parties, picnics and other company get-togethers. If you are interested in the form, send a reply and we will forward it in draft for your consideration and use.

If you aren’t sure, the State Chamber is the go-to place for IL WC reform and help for all Illinois businesses to beat your competition from other states. KC&A is a long-time member and we urge you to join.

Happy New Year to everyone, from the attorneys and staff of Keefe, Campbell & Associates. God bless our great country!!

12-27-11; Once litigation starts, it is a mistake to hide documents or other discoverable information

It is imperative employers and insurance companies involve defense counsel in discovery requests and maintain and turn over to defense counsel all related documents for a legal determination of whether such information is privileged or need be disclosed in accordance with interrogatories.

In LM Ins. Corp. v. ACEO, Inc., the court granted attorney fees after the employer failed to turn over very significant documents, which the employer claimed did not exist, or at least, could not be found. The documents were thereafter obtained from a former employee and proved to be singularly unfavorable to Defendants.

The court reasoned sanctions were warranted given a prior order directing employer to respond to discovery requests and thereafter the employer's refusal to abide by the court’s order. Regardless of the fact defense counsel never asked individuals to search their own computers or files for the documents and the employer never instructed employees to maintain documents following the initiation of litigation, all information should be searched, diligently found, and turned over to defense counsel for appropriate disclosure.

Additionally, employers need to be sure all information given to their insurance company is accurate. The court also granted sanctions based on a failure to respond to interrogatories on the separate issue of the employer misrepresenting to the insurance company

1.    What type of business it was—in this claim saying it was a temporary staffing company rather than an employee leasing company;

2.    What its total payroll exposure was

3.    What companies it was affiliated with, and

4.    Whether there were any outstanding workers' compensation claims.

As a result of these alleged misrepresentations, the insurance company claimed the premium was significantly underestimated by perhaps millions of dollars. Moreover, because one of the employer’s affiliated companies had an outstanding premium debt, it wasn't even eligible for coverage.

Obviously, the more exposure, the higher the premium ought to have been. In brief, the employer’s application represented its payroll exposure as $67,000. The insurance company estimated the premium at $2,838. Yet, in fact, the employer’s actual payroll was between $29 and $35 million putting the premium the employer ought to have been paying in the neighborhood of $4 million. We consider that a pretty substantial underpayment.

Again, to avoid preventable excess exposure such as attorney fees and other discovery sanctions, involve defense counsel in all interrogatory requests, maintain all documents related to the matter, and direct employees involved to actually find such information for the determination of whether it need be disclosed. The employer and insurance company arguing it could not find such information will not have a successful defense to sanctions if such information later comes to the light.

This article was researched and written by Nathan S. Bernard, J.D. who can be reached at nbernard@keefe-law.com