1-18-16; IL WC Appellate Court May Be Our Super-Commission?; Facebook Retraction Can't Be Ordered by Courts, analysis by Ellen Keefe-Garner; John Karis on Important Ruling about Intentional Acts...

Synopsis: IL Appellate Court, WC Division Continues to Define Its Role as What May Be Our Super-WC-Commission.

Editor’s comment: We have seen so many unanimous rulings from the current five-member IL WC Appellate panel, it almost seems like we are dealing with a single justice and not five separate men. We also just saw another “manifest weight of the evidence” reversal to insure claimant receives the highest possible IL WC benefits after the IWCC awarded less than the highest amount. We continue to await the first manifest weight reversal from the members of this panel to see an IL WC Commission benefits award lowered even a penny or fully vacated. We assure our readers from the business, claims and legal community, this panel hasn’t gotten the quiet message that some members on both sides of the IL WC matrix quietly want Illinois WC awards and benefits to be brought back to the middle of the pack of U.S. WC systems. We assume the claimant bar is watching and when a claim is denied by a conservative IL WC Commission award, an appeal to this panel for more do-re-mi will be a viable option. On the other side, we see no reason for any Illinois employer or WC insurance carrier to bring an appeal to this activist, liberal and pro-labor group unless you like losing and truly losing big.

What Happened to Sisbro and Twice Over Clean?

About a decade ago, the IL Supreme Court went back and forth on these somewhat famous rulings. The clear and abiding message was our penultimate reviewing court wasn’t supposed to interject their own view of the facts in handling WC appeals. In Sisbro, our highest court said

The Commission must decide whether there was an accidental injury which arose out of the employment, whether the accidental injury aggravated or accelerated the preexisting condition or whether the preexisting condition alone was the cause of the injury. Generally, these will be factual questions to be resolved by the Commission. However, the Commission's decision must be supported by the record and not based on mere speculation or conjecture. If there is an adequate basis… the Commission's award…must be confirmed.

In short, it seems to us the reviewing courts aren’t supposed to reverse an IWCC ruling without a very, very strong basis to do so. That said, we have seen at least five rulings in the last couple of years where the Appellate Court, WC Division is obviously and unanimously substituting their view of the facts for that of the Commission. In each and every claim, they are doing so to insure benefits are either awarded or enhanced for a claimant. With respect to the members of the Court, we think they are acting as a “Super-Commission” when they ignore the Commission and do what they feel they want to do with even the simplest set of facts.

What Just Happened?

Well, the Court just flipped another reasonable award by the IWCC to insure the highest conceivable WC benefits are awarded. Wage-differential awards are one of the two forms of PPD compensation provided by the Illinois Workers' Compensation Act. Section 8(d)(1) of the Act provides that a worker is entitled to a wage differential award when her or she is partially incapacitated from pursuing their usual employment when there is a difference between the average amount Claimant would be able to earn in their job and in the average amount which they would be able to earn after the accident.

Alternatively, if the IWCC doesn’t use their discretion to award wage differential benefits, Section 8(d)(2) or the “person as a whole” provision provides for a PPD award based on a percentage-of-the-person-as-a-whole when the worker is partially disabled from continuing their job but also suffers a limit on earning capacity.

Is it Section 8(d-1) or 8(d-2), Who is Supposed to Make the Call?

The IL WC Appellate Court, in its decision for Jackson Park Hospital v. IWCC was dealing with an employer in the poorest part of Chicago. In our view, Jackson Park Hospital is hanging on by a thread and a prayer. We don’t truly know but we doubt they are paying hourly fees to their defense lawyer with any regularity. We assure our readers, most of their patients are on Medicare/Medicaid/ACA or some government medical program and they are patiently waiting to get paid at every step of the treatment process.

Claimant  worked as a stationary engineer for Jackson Park Hospital on the east side Chicago. It was her job to address plumbing, heating, and electrical maintenance issues throughout the hospital facility. She had to have training needed to understand these mechanical concerns. Claimant hurt her back in October 2005 while trying to climb into a locked office through a sliding glass window. Her treating doctor authorized her to return to sedentary work in February 2007. Jackson Park Hospital offered Claimant a clerical position in its accounting department. The hospital later moved Claimant to another clerical position in its employee health department, and then to its security department. Even though she wasn’t working as a stationary engineer, the Hospital continued to pay Claimant at the same rate she had earned as a stationary engineer in each of these positions. Claimant still filed a request for lifetime wage loss benefits based on Section 8(d)(1) of the IL WC Act. There is no evidence in the record of any effort of the Hospital to locate work for her outside the Hospital. We don’t see any evidence of a voc rehab provider testifying she can and should be working today.

Arbitrator Cronin carefully considered the facts and determined Section 8(d)(1) which provides for wage loss differential benefits was inapplicable to Claimant because she suffered no actual reduction in her income. He instead awarded Claimant substantial “person as a whole” PPD benefits based on Section 8(d)(2). Like Section 8(d-1), this section of the IL WC Act also clearly covers loss of wages.

After receiving the Arbitrator’s award, Claimant appealed to the Illinois Workers' Compensation Commission. For reasons unstated in the record, the Hospital coincidentally terminated her while her administrative appeal was pending. She filed an emergency motion to remand the case to the arbitrator in order to reopen proofs to allow additional evidence relating to termination. The Commission carefully considered the motion but denied it. The Commission panel later affirmed Arbitrator Cronin’s award and adopted the arbitration decision as its own ruling.

Clamant sought judicial review, and the Cook County Circuit Court judge reversed the Commission. The Judge said the Commission's decision to award benefits under Section 8(d)(2) instead of 8(d)(1) was against the manifest weight of the evidence and the opposite conclusion was clearly apparent. He ordered the case remanded for the Commission to issue Claimant a wage-differential award. Please note both Section 8(d-1) and Section 8(d-2) unquestionably provide for loss of income in a post-injury setting. There is no legislative guidance on which Section of the IL WC Act that prevails in a dispute. In essence, the Commission and reviewing courts randomly get to do whatever they want. In trying to resolve this legislative discrepancy, ten years have passed.

On remand, the Commission panel ruled they thought there was no evidence in the record that warranted altering its prior decision but it complied with the Judge’s order and awarded Claimant $389.60 per week, from Feb. 19, 2007, through the duration of her disability which most folks would feel will be the end of her life. She is going to be paid $20,259.20 a year on a tax-free basis by this struggling hospital from now on. We can’t tell how long that exposure will last as we can’t learn Claimant’s age from the web or the IWCC website. We also don’t see the IWCC or courts outlining the needed voc rehab and job search efforts in the decision on appeal.

The Hospital appealed the wage loss award, but the Circuit Court upheld the award. The Hospital’s attorney then made what we consider a mistake to take the claim to the activist IL Appellate Court, WC division. The unanimous five-member IL WC Appellate panel ruled the Hospital now has to pay Claimant that money on a weekly basis for life. Instead of owing her for 200 weeks, they could pay her for 20, 30 or 40 years, depending on how long she lives.

In short, we have no idea when wage loss under Section 8(d-1) should be awarded in contradistinction to similar PPD benefits under Section 8(d-2). We are sure Section 8(d-2) provides lesser monies for IL WC wage loss awards but it appears the reviewing courts are putting themselves in the place of the Commission, as what may be a “Super-Commission” in making such policy decisions.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: IL Courts Can’t Require Facebook Messages to Retract Prior Posts. Analysis by Admitted Facebooker Ellen Keefe-Garner, RN, BSN, JD.

Editor's comment: Facebook is an online social networking service headquartered in Menlo Park, California. Its website was launched February 4, 2004, by Mark Zuckerberg with his Harvard College roommates Eduardo Saverin, Andrew McCollum, Dustin Moskovitz and Chris Hughes. The founders initially limited the website's membership to Harvard students, but later expanded it to other colleges. It gradually added support for students at various other universities and later to high-school students. Since 2006, anyone who is at least 13 years old was allowed to become a registered user of the website, though the age requirement may be higher depending on applicable local laws. Its name comes from the “face book” directories often given to American university students.’

No one can disagree with the premise Facebook has changed our lives forever. Information posted on Facebook is out on the Internet forever and is there for everyone to read. There is no doubt controversial subjects often find their way into a Facebook post. Lawyers have learned they can discover information on Facebook that can be used to help or hurt a litigant's position in a legal matter, such as a workers’ comp or employment law claim. In fact, courts on all levels are considering legal issues related to Facebook postings. Recently the United States Supreme Court heard arguments about whether violent statements posted on Facebook show proof of a person's intent to commit harm.

An interesting issue concerning a Facebook post was recently litigated in the Illinois Fourth District case of In Re Marriage of Weddigen. In Weddigen, a divorcing father published a Facebook post in which he claimed to have secretly recorded a hearing in his child custody case. His wife subsequently filed a motion requesting the court hold the father in contempt of court for writing the post and for recording the child custody hearing. Several hearings were subsequently held, after which the court ultimately entered an order holding the father in contempt of court. In addition, the court required the father publish a Facebook post to apologize to "everyone" as well as to encourage others to refrain from making recordings of child custody proceedings.

Although the majority chose not to address any First Amendment and/or freedom of speech issues, it did overturn the contempt order for other reasons. The most interesting discussion in the opinion was in Judge Steigmann's special concurrence. In his concurrence, Judge Steigmann made a colorful argument in which he called the order to publish an apology "compelled speech" reminiscent of that demanded in totalitarian regimes in which there is no right to free speech. In his concurrence, Steigmann made sweeping statements to express his dismay the contempt order violated the father's First Amendment rights. In his written opinion, Steigmann referenced the case of Brandenburg vs. Ohio State, in which the court stated: “The right to think is the beginning of freedom, and speech must be protected from government because speech is the beginning of thought." Steigmann went on to conclude requiring the father to publish an apology on Facebook was reminiscent of the Vietnam "reeducation camps" and he stated the trial court was completely without legal justification to impose such an order.

This Appellate Court opinion may make people believe they have an endless amount of freedom to publish anything they like on Facebook. However, the same people should remember their postings on Facebook can backfire in ways not protected by the First Amendment. Social media snooping has become very popular and is often done to garner information intended to be used against the person doing the posting. Notably, potential employers often look at an applicant's Facebook page to determine if the applicant is deserving of employment. If the potential employer observes Facebook posts revealing wild behavior like excessive drinking or drug usage, the employer may have reservations about extending a job offer to an applicant. Also, attorneys frequently search through social media sites to obtain "dirt" that can be used against adverse parties in legal cases. In fact, some legal ethicists have proposed that attorneys have an affirmative duty, and not just a right, to investigate facts they could or might find on Facebook or other social media sites in the context of performing discovery in a legal matter. So, even though the First Amendment might protect any speech found on Facebook, individuals should be careful about what they post in order to avoid embarrassment if an attorney or a potential employer decides to use the post against them.

This article was researched and written by Ellen Keefe-Garner, RN, BSN, JD. She can be reached for questions and concerns at emkeefe@keefe-law.com.

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Synopsis: Important WC Ruling Where the Workers’ Compensation Act Bans Civil Claim for Failing to Show Employer’s Acts were Intentional. Analysis by John Karis, J.D.

Editor’s Comment: On December 4, 2015, the New Jersey Appellate Court upheld a trial court’s decision preventing a Plaintiff and her husband from suing plaintiff’s employer for assault and sexual harassment stating it was barred by the exclusive remedy provision within New Jersey’s Workers’ Compensation Act. Similar provisions apply in the five states KCB&A has licensed defense lawyers.

Claimant worked at a Burger King restaurant in the Monmouth Mall in Eatontown, New Jersey. On August 29, 2008, Claimant was working in a walk-in freezer when an assistant manager followed her into the freezer and proceeded to touch her through her clothes, kissing her.  While she was in the freezer, the BK manager of the restaurant, opened the door, looked at both employees, and then left.  When the door had been briefly opened, the assistant manager ceased touching Plaintiff, but later in the same day, this ass’t manager again touched her and kissed her while they were both at the workplace.

Clamant did not report either incident on the day the two incidents occurred.  However, the following day, Plaintiff’s husband called to complain about how his wife had been treated. Claimant’s husband then came to the restaurant the following day to provide more details of the alleged assault. Burger King had a written policy prohibiting workplace harassment, which all employees received.  The manager followed the policy and reported the allegations to the district manager, who conducted an investigation. The assistant manager was suspended, then transferred to another store, and eventually terminated when he did not report to work.  Plaintiff ceased her employment with Burger King two weeks after the alleged assault.

On September 10, 2008, Claimant reported the two incidents to the local police, who arrested the assistant manager and charged him with fourth-degree criminal sexual contact. He pled guilty to a lesser charge of violating an ordinance.

In March 2009, Plaintiff brought a workers’ compensation claim against the restaurant owner, alleging workplace injuries and sexual assault. That case was settled for $7,500. Claimant and her husband also brought a civil claim against the assistant manager, Burger King Corporation and their manager.  The claims against Burger King were dismissed and the claims against the manager were settled and dismissed. The remaining Defendants moved for summary judgment, arguing the civil suit was barred by the exclusive remedy provision of the NJ Workers’ Compensation Act.

Generally, when an employee's claimed injuries fall within the coverage of the WC Act, the employee is barred from seeking further legal redress from an employer or co-employee. The WC Act's exclusivity can be overcome if the case satisfies the statutory exception for an intentional wrong.

The trial judge dismissed the suits, and Claimant and her husband appealed. They relied on a 1988 federal case, Cremen v. Harrah’s Marina Hotel Casino, where the Court held the civil suit survived the workers’ compensation bar. The Appellate Division in this case held the facts in Cremen were distinguishable.

The Appellate Division held this case was simply a matter of negligence.  It felt the manager acted negligently in that he should have asked what was going on when he walked in to the freezer. To get past the exclusivity of the WC Act, Claimant had to prove intentional conduct, but the court said this sort of inaction is not intentional harm.  The Court also held the owner engaged in no intentional conduct. Instead, it acted consistent with its harassment policy once the claim was reported. Therefore, the WC Act barred the civil suit against both the manager and owner.

This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions about general liability and workers’ compensation at jkaris@keefe-law.com

1-11-16; Understanding Email in Dealing with Your Defense Lawyers; Nathan Bernard on Important SS Rule Change in the Works; CA UR ruling to Threaten All WC UR and more

Synopsis: Understanding Email for Your Lawyers Handling Litigation Along with the Claims Handlers and Risk Managers We Report To.

Editor’s comment: The most basic technological tool used by virtually every competent attorney on a real time basis is electronic mail or email. It clearly has made the telephone, fax machine and overnight mail greatly less important to all insurance or self-insured legal claim handling. Email is an instrument that has completely changed the manner in which attorneys communicate with our clients, hearing officers and vendors. Used properly, email enhances communication with future and existing clients, thereby augmenting the attorney-client relationship. Almost-instantaneous email is a stark contrast to snail mail where documents could take a week or more to be created and sent to the respective recipient.

However, the improper use of claim email may prove to be a source of embarrassment, or worse, adversely impact the client, vendor, hearing officer or attorney. Care must be taken to ensure the sometimes informal nature of communication via email does not lead to a lack of consideration with respect to the substantive content of the communication. Recipients’ email addresses should be carefully checked and rechecked for pinpoint accuracy to insure you aren’t sending “stray” email to the wrong reader(s).

A great writer pointed out every email in a litigation claim should be composed as if someday an evidence exhibit stamp would appear at the bottom of the document. This caveat applies to emails from risk managers and claims handlers. The rules of proper spelling, punctuation, capitalization and grammar apply and should always be observed. If you copy anyone, all of your emails should start with a simple and clear salutation to the person you send it to first, so other recipients who are merely copied on the communication realize they are not the primary addressee. To maximize a recipient’s understanding of the importance of the communication, use the subject line in a simple but meaningful manner.

We are using/attaching Microsoft Word® documents less and less as email attachments for a variety of reasons—the main one is you have to keep resaving and re-dating a Word doc where email carries its own date/time when sent. As we point out below, since you have to save both the email and attachment, you are saving time to simply send an email.

We train all defense attorneys at KCB&A to be diligent in regularly checking and responding to emails. Our goal is to match or exceed our client’s intensity, so if a client is concerned about an important issue early in the morning or late at night, we try to get back to you on a 24/7/365 basis with great advice and needed research.

Lawyers Have to Save All of Your Emails, Even If You Don’t Assign Us The Claim/Litigation

As we outline above, email has replaced most other modes of communication to all parties in the course of representing a client. Although the obligations may vary depending upon the jurisdiction, in general an attorney must retain emails that have any impact upon the client’s representation and legal interests. Lawyers also have to save them consistent with local rule in the five states KCB&A handles. We have to carefully track and follow the law in individual jurisdictions concerning the retention, protection and storage of client files.

We are asked all the time if we made a settlement offer or filed a motion or some other legal task. If you want a copy of your lawyer’s settlement offer—ask them! If they can’t quickly send it along, you may have issues with your lawyer bigger than the handling of one claim.

We answer lots of emails about potential claims or legal issues. If you ask a KCB&A lawyer a hypothetical legal inquiry about a fact situation, we always like to err on the side of storage of your question and our answer about any legal topic. We will sometimes open a file without any billing until you authorize it. Much more often, we simply retain the email and any attachments in your general client file. We have the capability to search/locate any email to confirm your question and our answer. Case management software permits email to be attached to your electronic file so that all attorneys working on the matter may have access to it. KCB&A has a firm-wide program of email retention to insure all members of our defense team can locate key communications, to optimize your interests.

Please Consider “Replying to All” When Responding to Defense Attorney’s Email

When sending any outbound email, we routinely copy our trusted staff, usually to include a paralegal and secretary. We are responsible for staff and they have the same attorney-client secrecy issues lawyers have.

The purpose of copying staff in any response to our outbound email is twofold—it is much easier for them to follow what we are doing on any given file so they provide backup in keeping files up to date and managing the litigation. Copying our staff also allows them to incorporate our responses into the file and save, save, save what we are doing.

Maintaining Secrecy—Attorney-Client Privilege

In addition to the practical and ethical concerns noted above, the prevalence of email has raised a host of ethical/risk management questions. Primary among them is whether a lawyer may use email to communicate with a client without violating the confidentiality of their relationship. The conclusion is, as with all communications, an attorney must exercise reasonable care to insure he or she does not inadvertently disclose his or her client’s confidential information.

We appreciate your thoughts and comments—if you have a great idea or a new concept on handling email in litigated claims, please send it along. Please post your best thoughts on our award-winning blog.

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Synopsis: Proposed changes to Social Security regarding Workers’ Compensation Offset Age. To all of our readers, please feel free to tender public comments to the Social Security Administration by February 3, 2016. Analysis by Nathan S. Bernard, J.D.

Editor’s comment: KCB&A takes pride in handling claims for defense only so as not to run into conflicts in creating law or precedent unfavorable to our defense clients. We often receive views and comments on our articles from our colleagues on both sides of the bar. But we report on all available stories and facts pertinent to our practice and the plaintiff/petitioner bar may find this fairly important. It is also important to our other readers, specifically our clients or potential clients, as the only good file is a closed file and we would want to avoid re-opening a file we handled should the Social Security Administration come calling on a settled claim.

It is important to note Social Security Disability benefits may be paid at the correct amount when petitioners get workers' compensation benefits at the same time. There is a maximum total amount of combined benefits a recipient is allowed per month. Social Security will “offset” benefits to bring the total to the monthly amount allowable, sometimes completely until other benefits are no longer being paid. Currently, this happens until Petitioner reaches full retirement age (age 65) and begins collecting Social Security Retirement benefits instead of Social Security Disability benefits. That age is now being reconsidered to move up from 65 to 67 depending on the person's date of birth for those who reached age 65 on Dec. 19, 2015, or later. Very generally, full retirement age for those born in 1937 or earlier, to 1942 is 65; from 1943 to 1959 is 66; and after 1960 or later, is 67. Months are also taken into account depending on the exact day and month you were born in a given year.

Often, attorneys settling workers’ compensation claims will add “spread language” to contracts spreading out a lump sum settlement payment into a weekly/monthly amount so as to adequately ensure the offset amount is being taken into account correctly. There is no doubt Social Security will take a close look at the language of the settlement document when it is offsetting benefit amounts. If this language is not included in the settlement agreement, Social Security may ask for documentation of medical and legal expenses, which could be an unnecessary burden easily avoided by paying advance attention to detail.

What the Plaintiff/petitioner bar may soon need to take into consideration (depending on the result of the proposed changes) is being careful about drafting settlement language to ensure the spread language is correct and SS-approved, using the accurate date of birth to confirm the exact months for each individual petitioner, so their client isn’t receiving more than they should but also they are getting all their SS benefits they should each month.

The Social Security Administration is accepting public comments through February 3, 2016 to extend the workers’ compensation offset from age 65 to full retirement age. Comments on the proposed change may be submitted online at www.regulations.gov under docket no. SSA-2015-0018. Those commenting are cautioned to not include personal information such as Social Security numbers, because the comments will become public record. Comments may also be faxed to (410) 966-2830 or mailed to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Blvd., Baltimore, Maryland 21235-6401.

This article was researched and written by Nathan S. Bernard, J.D. You can contact Nathan at (312) 756-3726 or nbernard@keefe-law.com.

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Synopsis: California WC Ruling May Forecast Counter-Attack by U.S. Claimant Bar Against UR.

Editor’s comment: The national WC press is abuzz with news of a ruling by the California 4th District Court of Appeal on whether the exclusive remedy of the workers' compensation system may not be so exclusive after all. In King v. CompPartners, the Court said an injured worker could potentially assert a viable tort claim against a physician utilization reviewer for failing to warn him about the potential risks associated with the withdrawal from psychotropic medications.

The Court found the physician who provided a medical opinion as to the reasonableness and necessity of Claimant’s ongoing treatment with prescription medication had a doctor-patient relationship despite never seeing the patient or actually treating them. Either way, the Court said the doctor owed Claimant a duty of reasonable care.

In finding a duty was owed to an unseen Claimant, the Court did not address whether the doctor's duty encompassed some unstated obligation to advise the unknown Claimant about what could happen if he wasn't weaned off a specific medication. The ruling said Claimant should have been granted leave to amend his complaint to clarify whether this was the conduct for which he sought to hold the UR provider liable.

If Claimant were trying to hold the UR provider liable for wrongfully deciding a prescription wasn't an appropriate treatment for the on-the-job injury, then the Court said the workers’ comp system and its independent medical review processes provided the sole avenue for relief.

We don’t’ know if or how far this particular attack on UR may go—we are sure UR is a touchstone for the battle between the Claimant and defense bar on the Left Coast. UR entered the IL WC matrix in 2005-6 and still is evolving. It hasn’t reached the same level of acceptance as it has in California WC claims handling.

We feel the Court’s ruling indicating there is supposedly a patient-physician relationship in UR setting to be silly for numerous reasons—if you want more reasons than those outlined here, send a reply. We will continue to watch and report whether this new tort concept goes further.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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.

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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.

                                       iii.     

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.

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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.