10-10-2016; Arthur O. Kane RIP; Dealing with Closure of Medical Rights in IL WC; IWCC Budget Disappears (?) and more

Synopsis: May God Bless and Keep the Memory of Arthur O. Kane, J.D.

Editor’s comment: Art Kane was licensed as an IL attorney on December 14, 1939. He was an amazing businessperson, legal advocate, philanthropist and mentor. To our understanding, Arthur Kane joined with Irving Greenfield and other top Illinois attorneys in the 1950’s and 60’s to create the Illinois workers’ comp model that we have today.

His lifelong friend was Martin Boyer who formed a claims company that was initially the Martin Boyer Company, later Cambridge Integrated Services. Many of the top execs from those companies are still in the Illinois claims industry today. Art Kane’s firm was named Kane, Doy & Harrington and was considered one of top defense firms in the central U.S. He once said his law firm handled 10% of all workers' compensation claims across Illinois, His former law partner Sam Doy, now deceased, fought on the beaches in Normandy and was wounded in Europe and awarded a Purple Heart. Current IWCC Commissioner Michael Brennan worked at the Kane, Doy, Harrington firm for almost two decades.

The story told about Martin Boyer and Art Kane is they sold the claims company/TPA they owned for a solid value to watch the purchaser do less than well. Martin Boyer and Art Kane bought the company back at a discount to again rebuild the business and sell it again. They again bought it back, rebuilt the business and again sold it and made a lot of money doing so.

Art Kane became famous for handling claims on both sides of the matrix, when there was no conflict of interest. I still remember him appearing at oral arguments before a Commission panel. He argued the first case for the defense side of a claim. Later in the oral docket, he handled another complex case for the Petitioner-side. By the end of the docket, he argued another case for the defense side, each time making it clear to the panel whether he was “wearing a black hat or a white one.”

Art Kane also pioneered the somewhat ethically challenging concept of “appearance-only” handling of defense files. What he would tell the Martin Boyer Co. adjuster to do was send him the Application only and his firm would file just an appearance without having a complete defense file. The adjuster would continue to seek to work out details with Claimant attorney and if they could resolve the claim, Art Kane’s would simply close the file. If not, the file contents would be sent over for “full defense.” The concept highlighted how powerful Art Kane became because no one ever fought about such handling and members of the Claimant bar would always provide some opportunity for his attorneys to get the file and get prepared for hearing. We assure our readers the concept of “appearance only” handling wouldn’t work in the Circuit Courts where the attorneys are less genteel and way more aggressive.

As a philanthropist Arthur O. Kane gave millions to support the University of Chicago: He and his beloved wife, Esther donated $3 million in 1996 for a 10,000-square-foot expansion that became the Arthur Kane Center for Clinical Legal Education, according to a press release by the University of Chicago. In 2015, Kane and his wife made a bequest to support two Law School positions for faculty members who have demonstrated expertise in constitutional law and/or administrative law. He and his wife also donated a significant amount of money to the Rehabilitation Institute of Chicago where they were board members.

Kane was a past president of the Illinois Workers’ Compensation Lawyers Association and Chairman of the Chicago Bar Association’s committee on workers’ compensation. Arthur Kane died on Oct. 1 "peacefully in his sleep," according to an obituary in the Chicago Tribune. He was 98.

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Synopsis: Dealing with Unpaid Medical Bills When Settling IL WC Claims.

Editor’s comment: We had a fairly sincere Claimant attorney complain:

We don’t know if work-related medical bills remain outstanding. Bills pop up months and sometimes years after the date of service. This is because bills sometimes sit in limbo with insurance carriers and as long as the treatment provider marks the bill as pending, they often don’t send additional bills. The bill could sit as pending because the WC claims handler wants more info or the WC adjuster doesn’t want to pay but hasn’t denied payment, or WC has denied and the treatment provider resubmit.

These things take months. Treatment providers also change billing companies quite frequently and bills get held hostage. Additionally, treatment providers often sell or turn over the accounts, which can happen multiple times and by the time it gets to a company that works the account, it has been many, many months, and the whole time the bill would show up as 0 with the treatment provider because they do a write off in their accounts. These are just a few scenarios. 

Basically, her message was medical liability has to remain open and infinite in settling a WC claim in this state.

And then you have a very difficult and troubled attorney in central IL He and his defense opponent had “open-ended” medical liability language in the lump-sum contracts following the model above. Then Petitioner’s counsel got the claim settled and waited about ninety days. After all the dust settled and everyone thought the IL WC claim was closed, for the first time, Counsel presented about $40,000 in medical bills for treatment no one on the employer/insurance carrier was aware of. Claimant’s counsel asserted the settlement contract wording was “all medical bills are paid.”

In my view, this was classic sandbagging—I feel he knew he was going to get a fight over the unpaid medical bills and hid them until he cashed the settlement check and disbursed the proceeds. Once that was complete, he then started the second fight.

We don’t mean the worker treated at ABC Hospital starting in the emergency room and then being admitted for surgery. We understand many times, some but not all of the bills get paid and fell through the cracks. In our view, that isn’t an issue when we know the worker treated at ABC Hospital.

Our problem starts when the worker treated at ABC Hospital and the surgical and follow-up medical care was with four different medical providers our side knows of. In our view, the defense side has to pay for such care whenever the bills are presented for treaters we are aware of.

We get mad when work-related medical care occurs that no one on the defense side knows about with a cost of $40K and there was literally no presentation, defense or denial of those bills. What if the bills were $140K or $440K? Under the theme presented by counsel in the quote above, the exposure for unpaid medical bills is infinite.

Our rule is we pay for medical bills for work-related medical care of which the defense is aware. Our lump sum settlement contracts say that. If there is a beef, we assert Petitioner or their attorney have to plead and prove we were aware of the care and/or the bills. We don’t ever use language in lump sum settlement contracts that says “all medical bills are paid” as that creates unlimited and infinite medical liability.

We don’t have to settle but if we do, we can’t have infinite post-settlement liability. If we try the claim, medical rights remain open but we have the ability to dispute bills and care.

We ask our readers—if you have a better approach to reasonably cutting off medical liability when settling/closing an IL WC claim—send it along, on or off the record.

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

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Synopsis: IWCC Budget and Fund-Spending Disappears?? JCAR to Examine WCC Rules on FOIA, Filing, Judicial Review

Editor’s comment: We recently learned two things of interest to WC readers in Illinois.

First, one of our readers noticed the IL WC Annual reports for years have reported the IWCC’s budget along with how much of Illinois’ business’ money is wasted, we mean spent on the various funds run by the IWCC. For the first time anyone can remember, the last or 2015 IWCC Annual Report dropped/skipped/deleted the budget and the levies and expenditures on the funds. No reason for the deletion is outlined.

In our view, the goal of doing so is to hide the budget from everyone and not allow simple but important analysis or monitoring. We are sure the information is contained somewhere in the IL State Budget that might be about twenty volumes of other stuff. No, we don’t want to go through all of that to find out what this one state agency is doing with our tax dollars and levies.

We find it particularly galling to see this is happening under Republican leadership. The math is there, why not let us know? Maybe we should send an FOIA request for them—see below.

Second, a bipartisan legislative oversight committee will review several Illinois Workers' Compensation Commission rules during its coming meeting.

JCAR or the Joint Committee on Administrative Rules will look at regulations concerning access to records, electronic filing, pre-arbitration, arbitration, review, oral arguments, judicial review, settlement contracts and lump sum petitions, the discipline of attorneys and insurance regulations. The proposed rule on access to records would bring the IL workers' compensation system into compliance with Illinois' updated Freedom of Information Act. It would require the Workers' Compensation Commission to respond to records requests within five business days from receiving a FOIA request. It would also make public all records dealing with payrolls, public funds, and settlement and severance agreements, unless exempted by statute.

The Illinois General Assembly delegates the power to oversee the rule-making process to the Joint Committee on Administrative Rules. The committee ensures that each agency's rules meet the requirements of the Illinois Administrative Procedure Act and that they do not exceed the agency's authority.

The committee requires people who wish to speak about a rule to mail their written comment to: Joint Committee on Administrative Rules, 700 Stratton Office Building, Springfield, Illinois 62706. View the agenda for the meeting, which links to each proposed WCC rule, on the third and fourth page, here.

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

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Synopsis: You Can Vote Today!!!

Editor’s comment: Voting is one of our most fundamental rights as Americans. It is the cornerstone of our democracy and our civic duty. Early voting is officially underway in Illinois. You can vote early using a mail-in ballot or at a local polling place.

Some people think their vote doesn’t matter. That’s just not true. Elections - especially those at the state and local levels - are often decided by just a few hundred votes. Your vote matters. 

Get out there and VOTE!!!

10-3-2016; Use Caution Using Credit Checks in Hiring by Lilia Picazo; Answers from Last Week's IL WC Article; Consider Pittsburg Biomechanics in Your Next Claim; Vote NOW! and much more

Synopsis: If You Run Employee Background/Credit Checks, Read This! Illinois Appellate Court in Ohle v. Neiman Marcus Group ruled IL employers cannot use credit checks to deny employment to sales associates job applicants. Analysis by Lilia Picazo, J.D.

Editor’s Comment: We are not fans of courts telling businesses how to operate and protect themselves from scammers. On September 27, 2016, the Illinois First District Appellate Court reversed the Circuit Court's ruling in favor of Defendant Neiman Marcus. The Court found Neiman Marcus violated Illinois’ Employee Credit Privacy Act when it denied Plaintiff Ohle a job in 2012 after running a credit check, which revealed several civil judgments against her and accounts in collection.

In 2012, Catherine Ohle applied for and was denied a “Dress Collections Sales Associate” position at Neiman Marcus after failing a credit check. Ohle filed suit arguing the use of credit checks violated the Illinois Employee Credit Privacy Act. This Act “prohibits an employer from inquiring into a potential employee’s credit history and prohibits an employer from refusing to hire an applicant or discriminating against the applicant because of his or her credit history.” 820 ILCS 70/10(a) (West 2012).

Neiman Marcus admitted Ohle applied for, was interviewed, and offered the sales associate position contingent upon completing a successful credit and background check. Neiman Marcus admitted the failed credit check was the reason it did not hire Ohle or other potential sales associates. Plaintiff sued them for this decision. Neiman Marcus moved for summary judgment arguing there were no genuine disputes of any material facts. Neiman Marcus claimed the “access” exemption to the Act allowed their action and they denied they engaged in unlawful practices alleging a satisfactory credit check was a “bona fide occupational requirement” for a sales associate position who handled money. It argued the sales associate position had “access” to personal or confidential customer information by accepting credit application and entering the information into a POS register. 

Cook County Circuit Court Judge Kathleen Kennedy agreed the sales associate position fell within the “access” exemption and granted summary judgment in favor of Defendant Neiman Marcus. The IL Appellate Court disagreed noting the “access” exemption was too broadly interpreted. A ruling in favor of Neiman Marcus would exempt all retail sales employees from the protections of the Act intended by the legislatures.  The Court reasoned sales associates were “neither managers nor select few employees” entrusted by Neiman Marcus to handle credit card applications. The court found sales associates were instructed to place credit card applications in a locked drawer for handling at a later time by a cash credit office.

The Appellate Court panel wrote “… most stores, including retail stores like defendant’s would be exempt and employers would be allowed to deny employment to citizens who face ‘financial hardships that are often unpreventable’ due to the ‘harshest economic we’ve seen in decades’ and who are not able to obtain employment despite ‘bad credit’” in situations such as Ohle’s.

Neiman Marcus argued two additional exemptions:

(1) sales associates had unsupervised access to cash and merchandise valued at over $2500, and

(2) sales associates had signatory power over business assets of $100 when issuing gift cards or refunds over $100.

The Court found sales associates did not have unsupervised access to merchandise and cash valued over $2500 because associates were supervised by managers and monitored by surveillance. The Court further found sales associates performed regular job duties when issuing gift card or refunds over $100. The Court found the duties did not arise to a signatory power over Neiman Marcus’s assets, as they did not have access to the department store’s bank accounts or authority issue checks on behalf of the store.

The Appellate Court remanded the case back to the Cook County Circuit Court for trial.

We consider this an anti-business decision and all HR managers should be aware of it. This ruling is especially important for our clients and other business entities that may use credit checks to deny employment. The Appellate Court’s ruling signifies that business entities cannot use a single credit check metric to deny employment to an applicant.  While one can argue a credit check reflects an applicant’s level of trustworthiness, the Appellate Court’s ruling narrows the use of the credit check to higher level positions with access to sensitive business assets.

The research and writing of this article was performed by Lilia Picazo, JD. Lilia can be reached at lpicazo@keefe-law.com for any questions regarding workers’ compensation and employment law.

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Synopsis: Answers from Last Week’s Article on IL WC--Always Consult with Keefe, Campbell, Biery & Associates on Four Types of Claims and More!! Check out the correct answers below.

Editor’s comment: We have recently reviewed a number of claims that were previously handled by other firms, including some “house” defense counsel operations. What we saw were lots of mistakes, some potentially expensive. We did our best to correct issues and point the claims in the right direction to rapid closure, sometimes finding ways to save lots of money.

The four types of challenging WC claims are

·         Death Claims;

·         Amputation Claims;

·         Total and Permanent Disability Claims and

·         Claims that Involve MSA’s or Medicare Set-Asides.

Here are Ten Simple Questions you might want to ask your existing defense firm about these challenging claims to see if they know what they are talking about. They shouldn’t have to research these sorts of issues.

1.            In an IL death claim, if the only survivor is a 15 year-old child, can the weekly death benefits be paid to the child? No, children/minors have no standing at the law; the money would have to be paid to the child’s guardian.

2.            In an IL amputation claim, can you safely accept the claim and pay weekly permanency benefits? No, once you are aware of the fact of the amputation, you have to pay the full amount to the injured worker all at once. If you do anything else, there is a high risk of penalties and attorney’s fees in an amount as much as 70% of what is owed. We don’t agree the IL WC Act says this but the Appellate Court, WC Division says that is the law.

3.            In a total and permanent disability claim in this state, can the employee receive benefits from a source other than the employer and its insurance carrier? Yes, the Rate Adjustment Fund. If you need more information on the RAF, send a reply.

4.            How many “types” of total and permanent disability claims are there in Illinois Work Comp? There are three—does your defense attorney know what they are?

5.            Can an injured worker adjudicated to be totally and permanently disabled also work and earn additional money? Yes, the IL Courts ruled a statutory total and permanent disability claimant can work and make money while also getting a significant tax-free weekly pay check for life.

6.            If you are settling a claim with an MSA, can there be a reversionary clause allowing the amount “set-aside” to be returned to the employer or its carrier? Yes.

7.            Under what circumstances can a weekly IL death benefit be payable to a survivor for more than 25 years? If there is a child who is physically or mentally disabled, the benefit can be due while the disability continues, even if that is more than 25 years.

8.            What is the purpose of a “death prove-up” in an IL death claim? To insure the employer/insurance carrier is paying the right widow/widower, children or dependents. If you don’t do a prove-up, you might have to double-pay a later arriving claimant.

9.            If someone makes $200 a week and they suffer an accident today that results in total and permanent disability, what is their minimum weekly T&P rate? $535.79!!

10.         What is the minimum combined death benefit payable to a widow-widower who survives 25 years after their decedent? $535.79 times 52 weeks in a year times 25 years or $696,527.00!!

We are confident few defense lawyers know the answers to what we feel are simple and basic questions. We have several adjunct professors of workers comp law on staff to quickly answer your biggest concerns. We also have Shawn R. Biery and Matthew Ignoffo who are MSA-certified and know the law on Medicare Set-Asides backwards and forwards.

We confirm for all of our readers, if you are dealing with a  complex claims, such as the ones above or any other complex WC issue in Illinois, Indiana, Wisconsin, Iowa or Michigan, send us your concerns and we will typically respond with research and the answers you need. We don’t charge for such work unless and until you assign us the file.

Give us a try! We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: What Is Pittsburgh Biomechanics and Would They Help In Your Next WC or GL Defense?

Editor’s comment: Biomechanics is the application of the principles of engineering and laws of physics to the living systems, such as the human body. The human injuries provide a basis for a biomechanical reconstruction that along with the mechanical reconstruction allows the determination of probable accident scenarios.

Biomechanists determine the mechanism of the injury and the forces involved, and relate them to the tolerance data and everyday loads to verify whether a claimed injury is consistent with a specific set of actions or exposure to a specific accident environment.

Who/What Is Pittsburgh Biomechanics?

Pittsburgh Biomechanics is a [regional/national] consulting firm that provides its clients with the knowledge and expertise they need in cases involving human injury as a result of an incident/accident. They use engineering and biomedical sciences to explore the cause, nature, and severity of injuries. 

Their Role in WC and GL Claims Defense of Your Toughest Claims

They provide their clients with a biomechanical investigation, which includes the basic technical background that they need to consider when involved in accident-related cases, such as low-speed motor vehicle collisions, slip-and-falls, occupational injuries, etc. Their engineers help the clients, including attorneys practicing personal injury law, understand the role that a biomechanical analysis can play in a wide range of accident scenarios.

Top Ten Reasons to Consider/Use Pittsburgh Biomechanics?

1. Pittsburgh Biomechanics helped pioneer the science!
2. They’re equipped with tools like state of the art research equipment, proprietary software, 3D Analysis and visual communication that helps tell a powerful, potentially game changing story.
3. They have extraordinary experience of 77 years for all professionals combined
4. Pittsburgh Biomechanics includes a team of two MDs, eight PhDs, three Masters of Science and two RNs.
5. They produce remarkable results.  For example, they are 39-1 in trials using their expert testimony, and 95% of the 1100 cases they’ve analyzed have resulted in denials or compromise settlements that changed the face of those cases. 
6. They turn assignments as quickly as needed and can be available 24/7 for consultation. 
7. Their rates are extremely competitive
8. They are growing and adding new, Fortune 500 self-insured and insurance carrier clients.
9. Pittsburgh Biomechanics has the strongest possible client focus – they will understand client objectives and customize their approach to meet your needs
10. They possess the strongest possible credibility. Their reputation is their most valuable asset. 

Management by Top BioScientists

The company is run by Dr. Kevin Toosi, M.D., PhD. He is a faculty member at Department of Bioengineering at the University of Pittsburgh where he received his PhD in Biomechanics Track. He conducts clinical research to understand the mechanisms through which repetitive strain injuries of nerves and tendons occur and investigate the acute and chronic changes in the musculoskeletal systems by collecting and analyzing biomechanical data. His primary research interests include studying median nerve injuries, such as carpal tunnel syndrome, and investigating the relationship between those injuries and biomechanical factors affecting wrist structure and function.

As the Principal Scientist at Pittsburgh Biomechanics, he uses engineering and medical sciences to explore the cause, nature, and severity of accidental injuries. As a biomechanist, he determines the mechanism of the injury and the forces involved, and relate them to the tolerance data and everyday loads to verify whether a claimed injury is consistent with a specific set of actions or exposure to a specific accident environment. He has more than seventeen years of experience in the areas of clinical medicine, basic and clinical research, mechanics of soft tissues, human injury biomechanics, injury causation, and occupant kinematics in motor vehicle accidents.

To retain them as experts in your next claim, go to their website at http://www.pghbiomechanics.com/ or call 412-221-1671

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

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Synopsis: You Can Vote Today!!!

Editor’s comment: Voting is one of our most fundamental rights as Americans. It is the cornerstone of our democracy and our civic duty. Early voting is officially underway in Illinois. You can vote early using a mail-in ballot or at a local polling place.

Some people think their vote doesn’t matter. That’s just not true. Elections - especially those at the state and local levels - are often decided by just a few hundred votes. Your vote matters. 

Get out there and VOTE!!!

9-26-2016; Supreme Court Orders Millions in "Legal Fees" Due As Part of Subro Recovery; Law Limiting Civil Juries to Six Vacated; Ten Simple WC Questions to Ask Your Current Defense Lawyer

Synopsis: IL Supreme Court Holds an Employer Has to Pay Statutory 25% Legal Fee on Unpaid TTD/PPD and Medical Benefits Even When Injured Worker Recovers Millions in Third-Party Claim.

Editor’s comment: In Bayer v. Panduit, the Illinois Supreme Court considered a claim where the worker was severely injured. In his third-party action against the construction companies who caused the accident, he recovered an IL record $64M verdict for such injuries. At the time of the jury verdict, the gross work comp lien was about $5.2M. When/if that verdict would have been paid by Defendants, the employer would receive the $5.2M lien less a 25% statutory attorney fee owed to Claimant’s attorneys along with deduction of a pro rata share of court costs.

Moving forward, the employer wouldn’t owe any work comp benefits until the remaining “credit” or setoff of about $59M would be used up by Plaintiff. At that point, work comp benefits might have to be restarted.

In this ruling, the IL Supreme Court held an employer was relieved of their obligation to pay its employee’s future medical care as a result of the jury verdict in the lawsuit against third parties must include that reduction in calculating how much the employer owes in statutory attorney fees for the legal work of the employee’s attorneys. In this instance, the employer Area Erectors, Inc. began paying TTD and later total and permanent disability benefits to Plaintiff Bayer after he was rendered a quadriplegic in a workplace accident. Bayer also sought recovery from Panduit Corporation, for whom Area Erectors was building warehouse facilities at the time of the accident. Ultimately Plaintiff Bayer and his attorneys, one of the top Plaintiff firms in the U.S. obtained a judgment via an all-time IL record jury verdict of $64 million.

Section 5(b) of the Workers’ Compensation Act, 820 ILCS 305/5(b) (West 2006), protects an employer’s right to receive reimbursement for all compensation paid under the IL WC Act if the employee recovers from a third party legally responsible for the employee’s injuries. The employer’s obligation to make future payments is suspended until the employee’s recovery from the third party has been used up or “exhausted.” Section 5(b) also requires the employer to pay for the Plaintiff attorney’s legal work resulting in the recovery from which the employer is reimbursed. In the absence of an agreement stating otherwise, Bayer’s lawyers were entitled to 25% of the amount of TTD, then T&P benefits along with all medical bills Area Erectors would have had to pay. The plain language of Section 5(b) provides the employer’s reimbursement includes “amounts paid or to be paid pursuant to paragraph (a) of Section 8.”  In other words, the IL WC Act expressly contemplates that future medical payments are to be included in the amount to be reimbursed to the employer. The 25% collection fee to be paid to Plaintiff’s attorney is to be taken from the “gross amount of such reimbursement,” which is to include both past and future payments.

The Policy Underlying This Section of the IL WC Act is

·         The employer receives a benefit from the third-party judgment, in that the employer may no longer be required to pay future indemnity and medical benefits;

·         The employer has received this benefit as a result of the efforts of the plaintiff’s attorney;

·         Therefore, the employer should share in the obligation to pay the plaintiff’s attorney fees. To that point, it should be emphasized the attorney does not reap a double recovery. Rather, the fee paid by the employer operates as a credit towards the fee owed by plaintiff to his attorneys.

Our sources indicate the employer Area Erectors agreed to pay and was regularly paying 25% of what they would have owed for weekly TTD and then T&P benefits but for whatever reason, disputed the 25% owed on the medical bills. We consider that legal position to be arguably contradictory and it was even odder to see the position appealed at significant defense cost all the way to our highest court.

The dispute was whether Area Erectors had to include the reduction in future medical expense payments in the ongoing attorney fee calculation. Based on a plain language interpretation of Section 5(b), our highest Court concluded the employer would have to pay the statutory attorney fee on the value of medical expenses the employer was relieved from paying in the future by virtue of the recovery in the lawsuit. Citing decisions in Zuber and In re Estate of Dierkes, the unanimous Court explained Section 5(b) of the IL WC Act equitably permits the employer to come out even, places the ultimate loss on the wrongdoer, and allows the employee to recover more fully for actual damages than is possible under the IL WC Act alone.

We are also advised by sources these various third party claims are being settled and paid and there is a confidentiality agreement as part of the settlement so no further details can or will be forthcoming.

From our view, this outcome is an accurate statement of the law but also incongruous and unusual—in a situation where an injured worker is to receive an 8-figure jury award--$64,000,000 and basically be set for life with that much tax-free money, it is odd to imagine this IL employer has to keep paying possibly millions more in substantial “legal fees” calculated on both total and permanent disability and medical benefits that aren’t being paid. We caution our readers in the claims, broker and risk industry—if you don’t truly understand this outcome, don’t feel too bad. It is a very narrow set of facts that might lead to this outcome. Send a reply if you want more information or background on it.

So Every Time Claimant Bayer Gets Some Aspirin, Does His Former Employer Have to Give This Non-Lawyer 25% Of The Cost As “Legal Fees?”

There is a practical problem of calculating the amount owed on future medical bills. The practical difficulty of computing future bills, standing alone, does not form a basis for relieving the employer of its obligation to pay a portion of the fee to the attorneys whose efforts directly benefited the employer.

In this case, Claimant’s counsel now need to compile and present the medical expenses incurred by Claimant since 2013, when the employer ceased paying attorney’s fees on the medical bills. Claimant Bayer may be entitled to receive “attorney’s fees” in the amount of 25% of those bills. We assume the WC carrier may contend its liability would be limited to 25% of its negotiated rate with the providers, or in the absence of a negotiated rate, then the lesser of the actual charges or the IL WC Medical Fee Schedule amount. We do see the potential for Section 8A Petitions to be filed to battle over such costs.

We are finally advised the IL WC case technically remains open. The prior Section 5(b) lien has been paid, subject to the 25% collection fee and the employer’s pro rata share of litigation costs. Benefits have been suspended due to the third-party recovery, but the WC carrier continues to pay 25% of the amount owed for PTD each week. We are told that money is being remitted directly to Claimant Bayer. We will let the accountants among our readers decide whether such payments of what are supposed to be “attorney’s fees” comprise a gift from his law firm to Plaintiff who isn’t an attorney.

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

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Synopsis: IL Supreme Court Knocks Out IL Law Allowing for Six-Person Juries.

Editor’s comment: Starting on June 1, 2015, all civil cases in Illinois were to be tried by a jury of six, halving the longstanding tradition of deciding civil lawsuits with a twelve-person jury. Criminal trials were still to be decided by a jury of twelve.

Senate Bill 307 (SB 307), later Public Act 98-1132 cut the number of jurors in all civil cases from twelve to six and increased the minimum payment for jury service to $25 for the first day and $50 for each subsequent day. Reaction to the new law was mixed, with approval split along party lines–and between the plaintiff and defense bar. The new law was widely supported by the Illinois Association of Trial Lawyers who claim the change will result in reduced costs and time savings to litigants and increased courtroom efficiency, all while encouraging jury service by increasing jury pay. Critics argued the perceived benefits were minimal – particularly in light of the trade off in halving the numbers in a civil defendant’s “jury of their peers.” However, the six-person rule was not unprecedented, with federal courts and many states employing six-person juries in civil matters.

As a populist measure, most agree the $17.20 paycheck Cook County jurors (jurors in other counties receive even less) receive for each day of service does little to offset the lost time and inconvenience of appearing for jury duty. But the question remains was the new provision of $25 per day for the first day and $50 per day if selected to sit on the jury really a fair measure of jurors’ time and service? Probably not. The pay raise was definitely an improvement, but the people who complain that they cannot afford the lost time of jury service were not likely to be swayed by the small increase.

Critics of the change also questioned whether the new law saved court time and costs. Criminal trials are still tried by a jury of twelve. By the time a significant civil case reached trial, the court time saved in selecting six jurors instead of twelve is unlikely to be significant to most litigants, particularly defendants who are losing the opportunity to present their case to an additional six people. Others claim the new law resulted in a lack of diversity of backgrounds and viewpoints on the jury. Conventional wisdom suggests larger juries tend to moderate the size of jury awards. A smaller jury is more likely to be dominated by a strong personality, whereas there is more room for debate in a larger group where it is less likely that a single juror or small faction will control the discussion. Across the board, it is easier for a plaintiff to convince a jury of six than a jury of twelve.

Now, in Kakos v. Butler, our highest court unanimously affirmed Judge Gomolinski’s judgment in the Circuit Court confirming the 6-person jury limit established by Public Act 98-1132 is facially unconstitutional. Supreme Court Chief Justice Rita Garman wrote for the Supreme Court.

The law eliminated the right of either litigant to request a jury of 12 members and provided instead “all jury cases shall be tried by a jury of 6.” The Act also established a uniform rate of pay for jury service at $25 for the first day and $50 per day thereafter. Because the Circuit Court judge found the Act to be unconstitutional, Plaintiffs were able to avoid the Appellate Court level and took a direct appeal to the Supreme Court as a matter of right pursuant to Supreme Court Rule 302(a).

The Supreme Court first explained it applied a limited lockstep approach when interpreting cognate provisions of the state and federal constitutions. Caution was appropriately taken because the Supreme Court of the United States held the amendments contained in the Bill of Rights do not require 12-person juries. The IL Supreme Court found the distinction the Illinois Constitution revealed an intent on the part of the drafters to maintain common-law characteristics of jury trials. Accordingly, a different construction of the Illinois Constitution, as opposed to the rights protected by the U.S. Constitution, is appropriate.

The Court then noted a long history in Illinois describing juries of consisting of 12 men. The Court ruling took note of the respective arguments of both Plaintiffs and Defendants as to whether the size of a jury affects the performance of juries, commenting both positions have some merit.  However, “our task is limited to determining whether the challenged legislation is constitutional, and not whether it is wise.” The Court found ample evidence the drafters of the 1970 Constitutional Convention believed they were specifically preserving the right to a 12-person jury. A proposal to the contrary was not adopted by the Convention.

The Court distinguished its opinion in 1939 which held women, as opposed to just men, could serve on juries. Among other distinctions, the Court stated the sex of a juror is a matter of juror qualification, and not an essential element of the right of trial by jury. The court concluded the 12-person size of a jury was an essential element of the right of trial by jury enjoyed at the time the 1970 IL Constitution was drafted,  the right was protected in the Constitution, and therefore the Act was unconstitutional.

The Court further ruled the companion provision for increasing the pay of jurors was not severable from the unconstitutional portion of the Act, and therefore it was found to be invalid as well. It was clear to the Court the legislation was intended to make jury trials more efficient and to encourage citizens to participate in jury duty. If the increased pay scale alone survived, the cost of jury trials throughout the state would dramatically increase.

Like the issue of fake government pensions that our state can’t afford, a concept like this has to be brought up in a “Con-Con” or constitutional convention. Our problem with suggesting such a convention be conducted in this state is IL House Speaker Michael Madigan and Chicago Finance Chairman Ed Burke are still in dominant power so any actions to make significant and cost-saving reforms might be impossible.

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