1-25-2016; Clarification/Correction from Last Week's Lead Article; E-Filing of Civil Litigation Coming to an IL County Near You Next Year; USDC for the Northern Dist of IL Announces New Website and...

Synopsis: Correction/Clarification On Last Week’s Lead KCB&A Update Article.

Editor’s comment: We wrote last week about what we feel is the Illinois Appellate Court, WC Division’s expansion of our IL Workers’ Compensation Act to allow wage differential benefits to be paid, even when the employer accommodates restrictions and there is no actual loss in earnings. This decision was reported by many national workers’ comp news sources as having the IL WC system require wage loss benefits be awarded by our Commission and reviewing courts even where there was no demonstrable loss of wages or income.

Our frustration with the ruling in Jackson Park Hospital v. IWCC led us to recommend against further appeals to this Division of our Appellate Court from the defense/respondent side of the aisle, as we find it virtually impossible to succeed based on the Court’s recent track record. In expressing our recommendation in this regard, we may have inappropriately referenced what we felt was a “mistake” of defense counsel on the case for having appealed the Circuit Court’s ruling to that panel.

It was not our intention to imply the defense attorney representing the Hospital had done anything wrong or was mistaken in his litigation management of the case at all. In fact, we know the attorney to be a veteran and capable litigator and we are certain he argued well for his client’s interests. It was pointed out to us further the wage differential award under 8(d)(1) in this case was actually issued by the Circuit Court Judge based on Petitioner’s appeal, and wage loss benefits were awarded based upon that reviewing court’s ruling finding the IWCC decision was against the “manifest weight of the evidence” standard. Therefore, the employer and defense counsel appropriately felt there may be a chance to reverse on further review to the Appellate Court, WC Division--to no avail. We were probably acting as “arm-chair quarterbacks” to unfairly comment in an after-the-fact perspective on what to do with an unsuccessful Circuit Court appeal. We extend our apologies to our respected colleague who clearly made what was felt to be the best possible decision to work hard and argue harder to seek what we feel should have been an appellate reversal and reinstatement of the IWCC ruling. Our commentary was intended to emphasize our view that current and future appeals by Illinois employers, government bodies and insurance carriers to this sitting Appellate Court panel are met by what we feel is a very Petitioner-oriented group of jurists and the chances of success are statistically quite slim. Employers should be mindful of the Court’s recent track record when considering what is usually the final level of an IL WC appeal.

The partners at KCB&A are in the ongoing process of updating our textbook to be used in our course on workers’ compensation law and practice we teach at The John Marshall Law School in Chicago. In pursuing the exhaustive research for that treatise, we review literally every single decision by the five-member IL Appellate Court, Workers’ Comp Division. What we have seen in doing that analysis is decision after decision from our Appellate Court, WC Division where all five justices rule with a single and unanimous mindset that we feel is insuring workers’ comp benefits are being awarded at the highest possible level. In some instances, we feel the justices are ruling in a creative fashion to “judicially legislate” or creatively outline new legal concepts to expand the WC Act’s coverage and/or heighten benefit awards, as we feel happened in the Jackson Park Hospital v. IWCC ruling we reported last week.

As we have also repeatedly advised the WC defense community, we are seeing more and more Circuit and Appellate Court rulings where the “manifest weight of the evidence” standard does not appear to constrain our reviewing courts in the fashion one might have felt would be followed after the crystal-clear rulings on the topic in two seminal decisions from the IL Supreme Court in Sisbro v. IWCC and Twice Over Clean v. IWCC. In both those decisions, our Supreme Court cautioned the lower courts not to interject their own opinions and supplant those of the IL WC Commission. Despite those clear-cut decisions, we still see case after case where denials by the IWCC almost regularly become awards in the reviewing courts.

As another thought, we point out our IL Supreme Court controls the composition of the five-member IL Appellate Court, WC Division. To read the many rulings of the penultimate reviewing court, one might think our Supreme Court was entirely from Democratic roots and pro-labor. In stark contrast to such expectations, the IL Supreme Court has three Republicans of its seven members. We would then assume there might be two members of the five-member IL Appellate Court who would be from Republican roots and be pro-management. One might then think you would see regular dissents from the pro-management/Republican members with perhaps an occasional win by the minority group. Instead the vast majority of IL WC appellate rulings are unanimous for the interests of Illinois labor and a dissenting voice is rarely presented—by that, we mean we see an Appellate Court defense dissent in the work comp arena about once every several years.

Is There a Concern About Unanimity at the IL Appellate Court, WC Division?

When we see strong unanimity from a veteran, erudite and strong-willed court, such as this, you have to start wondering why defense lawyers are first recommending and then taking cases to this third level of WC appeal. As we indicate above, after the third level of appeal, defense lawyers rarely bring back anything for their clients to appreciate in exchange for taking on the cost, uncertainty and risk of that appeal--there have been no defense dissents in the vast majority of IL WC appellate rulings in the last several years. Will this “activist” harmony continue?—there is no indication any of the justices are even slightly leaning to the defense side. For now, an overwhelmingly pro-labor, pro-benefits consensus statistically reigns.

That is partly because some of the recent decisions were decidedly minor in scope and outcomes predictable. But the Appellate Court, WC Division justices were also unanimous in significant cases, too. When we see a concurrence, it is one or two justices seeking to add more fuel to the majority’s award. The recent unanimous cases are noteworthy for a second reason: many of our august justices truly speak with a single voice. Such authentically unanimous decisions are starting to signal a lack of hope for employers, governments and insurance carriers in getting what they might feel is a fair shake.

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

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Synopsis: IL Supreme Court Orders E-Filing for Civil Claims. Will the IWCC Follow?

Editor’s comment: Starting in July 2017, all Illinois civil claims are going to follow e-filling protocols. We are happy to see our highest court move to streamline and automate these processes that we feel should reduce waste and save taxpayers money. We hope the practice of criminal law is soon to follow. We also feel some older lawyers may leave the practice rather than deal with the many computer-based changes that will be coming to their practices.

We also hope Chairperson Fratianni and her great staff are looking into taking our Illinois Workers’ Compensation Commission into the land of e-filing and e-service. You may note they recently ended the use of snail mail to issue decisions—we feel all IWCC notices can and should be more streamlined and much faster. Status calls can and should be conducted online. Again, this may reduce IWCC staffing needs which should save Illinois business and governments money, as they pay 100% of the cost of operating the IWCC.

Here is the IL Supreme Court’s Historic Order from Last Week:

The exchange of information required to resolve disputes in court has, until the past quarter century, relied almost exclusively on paper documents . Technology has since evolved to provide for the automated exchange of court information. Court users, including self-represented litigants, increasingly benefit from paperless court systems that allow for electronic filing, service and access to case documents.

The Supreme Court of Illinois has adopted numerous rules, policies and initiatives to promote e-filing with the goal of fostering the effective and efficient administration of justice. Advances in e-filing were initiated on September 19, 2002, when the Court filed M.R. Order 18368 authorizing the electronic filing of documents with the Supreme Court on a pilot basis. However, after several years, only five counties were operating under the pilot program. To encourage expansion of e-filing, the Court approved Electronic Filing Standards and Principles on October 24, 2012, thereby concluding the pilot status of civil case e-filing and authorizing permanent e-filing upon circuit court request and Court approval. In September 2014, the Court amended the Electronic Filing Standards and Principles to include e-filing in criminal case types and traffic citations. Yet, to date, only 15 of 102 Illinois counties have sought and been granted approval for e-filing. The scant use of e-filing statewide brings to bear what the Supreme Court has long recognized -- the barriers to statewide e-filing revolve primarily around the wide variances in funding and technology resources available to the state 's 24 circuit courts, including the 13 different case management systems currently operating in Illinois.

Committee Review and Recommendations

To address this challenge, the Technology Committee of the Conference of Chief Circuit Judges was tasked in 2013 with considering statewide standardization of data definition and exchange methods for e-filing and e-records. On June 21, 2013, the committee included within its recommendations to the Conference the conclusion that statewide e-filing efforts will develop if courts are mandated to e-file and follow a common set of standards for data packaging and organization.

On November 26, 2014, the Court created the e-Business Policy Advisory Board and Technical Committee comprised of judges, court clerks, attorneys and court technology personnel. The e-Business Policy Board is charged with providing recommendations, advice, and guidance to the Supreme Court and its Administrative Office of the Illinois Courts regarding the implementation of e-Business applications and data exchanges in Illinois circuit courts. On December 15, 2015, the e-Business Policy Board made several recommendations to the Court, including: (1) set a date certain for the implementation of mandatory e-filing of civil case s for all counties in the state; (2) require a single e-filing manager (EFM) to integrate e-filed documents into the case management systems of all counties not presently approved to conduct e-filing; and, (3) allow counties currently approved for e-filing to continue with their current e-filing systems, including EFMs, until one year after the centralized EFM has been operational for all other counties in the state, during which time a review should be conducted to recommend a date certain for those counties to begin using the centralized EFM for the e-filing of civil cases.

In spite of the rules, policies and standards in place, the implementation of discretionary e-filing program s has not achieved the desired goal of statewide e-filing on civil matters. As such, in reliance upon the recommendations of multi-disciplinary committees, boards, and court staff who have spent years evaluating this issue, this Court concludes that e-filing in civil cases in Illinois must be made mandatory.

THEREFORE, IT IS ORDERED that:

1. This Order governs e-filing in civil cases for the Illinois Supreme Court, Illinois Appellate Court and Illinois Circuit Courts.

2. E-filing of civil cases shall be mandatory in the Illinois Supreme Court and the Illinois Appellate Court effective July 1, 2017.

3. E-filing of civil cases shall be mandatory in Illinois Circuit Courts effective January 1, 2018.

4. In the Illinois Supreme Court and Illinois Appellate Court, e-filing of civil cases shall occur consistent with applicable policies, guidelines and/or standards authorize d by the Supreme Court and through the utilization of a centralized electronic filing manager (EFM) authorized by the Supreme Court. The centralized EFM shall be integrated with the Supreme Court Clerk and the five Illinois Appellate Court Clerk case management systems.

5. In all Circuit Courts which have not implemented an authorized local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court, and through the utilization of a centralized electronic filing manager (EFM) authorize d by the Supreme Court. The centralized EFM shall be integrated with each Circuit Court's case management system.

6. In all Circuit Courts operating an approved local e-filing program by the filing date of this Order, e-filing of civil cases shall occur per the applicable policies, guidelines and/or standards authorized by the Supreme Court, and through the utilization of an electronic filing manager (EFM) authorized by the Chief Circuit Judge and Circuit Clerk or the centralized EFM authorized by the Supreme Court. After January 1, 2018, and following evaluation of the implementation and operation of the centralized EFM, the Supreme Court may designate a future date certain at which time all such Circuit Courts shall utilize the centralized EFM authorized by the Supreme Court for the e-filing of civil cases. The centralized EFM shall be integrated with each Circuit Court's case management system.

7. Once a court is subject to mandatory e-filing under this Order, attorneys and self-represented litigants must e-file all documents in civil cases, except documents exempted by rules adopted by this Court. Attorneys and self-represented litigants may not file documents through any alternative filing method, except in the event of emergency. Courts may not accept, file or docket any document filed by an attorney or self-represented litigant in a civil case that is not filed in compliance with this Order, except in the event of an emergency. The Supreme Court, Appellate Court and Circuit Courts must provide designated space, necessary equipment, and technical support for self-represented litigants seeking to e-file documents during regular court hours.

8. Effective July 1, 2017, all trial court records on appeal will be standardized and transmitted using the central electronic filing manager (EFM) service from each county to the respective reviewing court.

9. The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order.

10. Courts who believe they cannot comply with this Order by the mandatory implementation date specified may petition the Supreme Court for an extension. Such extensions shall not be favored but may be granted for good cause shown.

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

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Synopsis: On the Federal Side of Our Newly Computerized Courts, the USDC for the Northern District of Illinois Announces Their New Website.

Editor’s comment: We want the legal/government and insurance community to get a sense of how computerization is rapidly coming at every level of the practice of law. You need to get used to it and work to learn all of it. We assure you the defense team at KCB&A is on the forefront of this trend.

Welcome to the Northern District of Illinois' new website

We are pleased to announce the launching of the court's newly redesigned website.  www.ilnd.uscourts.gov

Averaging 24,000 visits a month, the court's website has increasingly become an important place for parties and the public to access information about cases, judges, and court news.

In creating the new website, we aimed for a cleaner look that is responsive to any browser resolution size and a design that we hope will simplify your web visit by allowing you to reach important applications with fewer clicks.  We hope you will find the new website both visually pleasing and easy to use.

Among the improvements you will notice, we would like to highlight the following:

• More keyword searches and clickable index numbers
• Direct links to individual judge's pages
• Quick links and courthouse information on the footer of each page

In addition to aesthetic and function changes, the court's website will not be hosted on an offsite server, which will allow for uninterrupted use in the unlikely event of a power outage at the courthouse.

Thank you and visit us at www.ilnd.uscourts.gov

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.