5-13-2019; What to Do When the Unforeseen Happens—Incident Investigation; Illinois Doc Reportedly Bills over $1M for Care to One Claimant and more

Synopsis: What to Do When the Unforeseen Happens—Incident Investigation.

 

Editor’s comment: Please note I am very reluctant to use the word “accident.” All my friends and scholars in the National and Local Safety Councils have convinced me to use the term “incident” to avoid anyone implying an “accident” means compensability. The word “incident” works much better—Please consider changing your “accident investigation” forms to reflect this concept.

 

Either way, when a catastrophic incident occurs, prompt and efficient collection of fresh evidence is critical to minimizing your liability exposure. If you don’t get evidence in 24 hours, it will rapidly disappear. As veteran defense lawyers, we tell clients and their investigators within 24 hours of the incident, if the fieldwork has not begun and progressed well, the evidence will almost certainly fade away.

 

You need to record weather conditions, emergency personnel, law enforcement, and other factors, which can quickly change the incident scene and may remove critical pieces of evidence. Witnesses’ memories of specific details begin to fade as the incident is no longer fresh. As time elapses following the incident, the who, what, when, where, why, and how of a catastrophic incident will rapidly disappear.

 

With proper planning and coordination, incident investigators can maximize the collection and preservation of critical pieces of evidence. At the same time, prompt action can minimize common investigation errors. The key is to develop a thorough method for collecting reliable, clear, and comprehensive information about an incident which will allow for an early evaluation of liability and damages.

 

COORDINATION OF THE INITIAL INVESTIGATION

 

It may be advisable to designate an “investigation coordinator” to oversee the initial investigation in order to eliminate confusion and redundancy. It is often prudent to promptly retain the services of a KCB&A attorney and our law firm with experience in handling the initial

investigation, as well as the defense of catastrophic incidents. The benefits of involving an attorney from the very beginning of the investigation include:

 

  • Coordination of investigative efforts to reduce duplicate and unnecessary investigation during the critical initial stages;

  • Assistance with the assignment and hiring of claims adjusters, incident reconstructionists, and other specialized investigators or experts;

  • Undertake necessary action to ensure the preservation of helpful evidence at the incident scene and to avoid spoliation of evidence;

  • Protection of all communications concerning the investigation via the attorney-client and attorney-work product privileges; and

  • Formulate an initial evaluation of the potential liability issues and gear the investigation toward the defense of impending litigation.

 

It is helpful to have a list of attorneys and law firms prepared in advance by state and locality, along with contact information. Retain KCB&A in IL, IN, WI, IA and MI, as we have the resources which are required to promptly coordinate the investigation and the experience to ensure the necessary

components are in place to successfully complete the initial investigation, including retention of our great team of medical, forensic and other experts.

 

THE INITIAL INVESTIGATION

 

The first call usually comes from the employee, supervisor, company, or law enforcement officials.

 

Obtain preliminary facts from these individuals and entities, such as:

 

  • Whether the incident involved any injuries or fatalities.

  • Extent of property damage – to vehicles, equipment, buildings, and products.

  • Location, type, and configuration of incident scene.

  • Incident conditions, i.e., weather, time of day, lighting, etc.

  • Details of the incident, i.e., location of vehicles, equipment, buildings, or products involved, identification of witnesses, nature and extent of physical evidence, etc.

  • Existence of photographs or videotapes.

 

Immediately Notify Insured’s Management or Employer

 

Compile a list of home, office, fax, e-mail, pager, and cell phone contacts for the insured company officials who will serve as contacts and assist throughout the investigation.

 

Gather Data and Evidence at the Incident Site

 

Depending on the severity of the incident, consider promptly retaining an incident reconstructionist, engineer, or other experts/investigators can aid tremendously in determining exposure, event chronology, and necessary additional investigation. After obtaining the preliminary facts, the investigation moves to the scene of the incident where there are crucial pieces of evidence that must be secured and preserved as soon as possible.

 

Incident Scene

 

Time is of the Essence

 

Get to the scene as soon as possible to determine the physical factors and/or conditions that may have played a role in causing the incident.

 

Construct a Chronology

 

Obtain statements from witnesses to determine the sequence of events. If the incident was a work site incident, obtain information on the directions of travel of each party to the point of injury.

 

Take Photographs/Videotapes

 

  • Incident scene from various angles.

  • Resting position of equipment, products or other physical evidence involved.

  • Damage to all property, buildings, equipment, products or other physical evidence involved.

  • Pre-incident paths of the humans, vehicles and anything that records the path.

  • Area where debris landed.

  • Determine existence of security video—secure it to insure it isn’t taped-over.

  • Potential Police/Fire Department Computer Evidence.

  • Cell phone photographs/video.

 

Record Road, Traffic, Weather, and Lighting Conditions

 

Electronic Data

 

Consider a potential Computer Forensic Expert

Preserve Cell Phones, iPads, etc.

Preserve Computers

 

Parties Involved

 

Record Names and addresses of:

 

– Injured party(ies), co-workers, supervisors, other potential witnesses.

– Owners, drivers, and passengers of all vehicles involved.

– Owners of all other property involved.

 

Determine the location of each party before and after the incident.

Determine which parties sustained injuries.

Identify fatalities and try to determine whether they survived the incident for any period of time.

 

Secure the Incident Scene

 

Secure the incident scene in coordination with local law enforcement to prevent further incidents, injuries, damage, and to preserve the evidence.

 

Summary

 

A catastrophic incident can occur at any time. Conducting a thorough initial investigation is critical to preserve the evidence which will serve as the foundation of the ongoing investigation and potential litigation.

 

In order to conduct the initial investigation, claims handlers should prepare and plan the procedures for conducting the investigation in advance. It is advisable that claims adjusters compile emergency contact information for their insureds. A roster of attorneys and independent adjusters by state and locality should be kept to allow for immediate access to investigation coordinators and investigators after a major incident.

 

A prompt and thorough investigation will allow you to gain an advantage in avoiding mistakes, which could otherwise result in unfavorable factual surprises later on, during litigation. Investigating and preserving the evidence will enable you mitigate the damages by settling the case early; laying the foundation for a defense to avoid prolonged litigation; and the opportunity to reduce the risk of a negative outcome in the event the case goes to trial.

 

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Synopsis: Illinois Doc Reportedly Bills over $1M for Care to One Claimant!

 

Editor’s comment: In Ross v. Illinois Central Railroad Co., decided May 6, 2019, I was advised medical care from one physician was over $1M smackers! In the ruling, a former railroad employee sued the railroad under FELA, alleging he injured his back while attempting to board a moving train.

 

After investigating his claim, the railroad filed a 3rd-party complaint against Plaintiff's doctor for contribution.

 

The IL Appellate Court ruled the Circuit Court abused its discretion in finding settlement between Plaintiff and his doctor reached was entered into in good faith, especially as amount of settlement was far less than doctor's fair share of liability.

 

The Appellate Court further ruled the Circuit Court erred as a matter of law when it concluded the “common-interest” exception applied to prevent waiver of attorney-client privilege when Plaintiff and his doctor shared attorney-client privileged communications with each other.

 

Even when a common interest exists between parties, the client must, at time of disclosure, have an agreement with the receiving party that party will treat the information as privileged.

 

I appreciate your thoughts and comments. If you want the link to the ruling, send a reply.

5-6-2019; Don’t Be Fooled When Settling Medical Exposure in Illinois Workers’ Comp; IL WC Appellate Rules are Strict!! and more

Synopsis: Don’t Be Fooled When Settling Medical Exposure in Illinois Workers’ Comp.

 

Editor’s comment: There are a number of traps and pitfalls in handling/managing IL WC claims. I consider the worst to be

 

  • Amputations;

  • Death claims

  • Medical settlements.

 

If you have questions or concerns about amputation or death claims in IL WC, send me a reply and I can help, I promise. I don’t charge for routine advice.

 

On medical settlements, I recently had several plaintiff/petitioner lawyers send settlement contracts or request settlement contracts that settled PPD but sought this language to settle 8a or medical rights:

“Respondent has paid or will pay all related medical bills up to the MMI date.” Please note my reasoned legal opinion such language is fatally flawed from a defense perspective. 

The main issue you will face is what I call attorney “sand-bagging.” The Claimant attorney may have lots of medical bills for questionable treatment incurred prior to MMI which they are holding back or hiding from you. This may happen intentionally or semi-intentionally.

If there is $50,000 or $100,000 or more in disputed care from one of Illinois’ famous over-treaters, you could be on the hook if you agree “Respondent has paid or will pay all related medical bills up to the MMI date.” Please don’t be a sap.

There is an Illinois WC Appellate ruling where a southern Illinois claimant lawyer (whose name is being withheld on purpose), settled a claim with such language and then dropped $40,000 in “new” and unknown medical bills on the adjuster. The adjuster had literally no idea that care took place and the attorney, in my mind, held the bills back until the settlement was approved and therefore final.

The IL WC Appellate Court basically said—“if you are stupid enough to agree to pay medical bills you don’t know about, don’t come to us to try to get out of it.” Ouch!!

In my view, in response to such proposed settlement language, I advised we will agree to pay all related medical bills of which Respondent is aware up to the MMI date. If there is a Claimant or defense attorney who has a better approach to insure appropriate medical bills are paid but surprise or “sandbagged” bills can be disputed, please send me a reply.

I consider it malpractice for a defense lawyer or adjuster to agree to pay medical bills of which they have no knowledge. If a dispute arises, Claimant counsel has to demonstrate my client or I knew of the treatment and/or the bills. If we know about the care, we need to either pay or actively dispute the bills. You can’t do that for medical care you aren’t aware of.

 

Please also be careful when you are workingonly with a Claimant lawyer and aren’t having settlement documents reviewed by a veteran defense lawyer. In most cases, I will review settlement docs without charge to insure you are fully protected from the pitfalls and traps of this business.

 

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Synopsis: The IL WC Appellate Rules are Strict!!

 

Editor’s comment: in Conway v. Illinois Workers' Compensation Comm'n, 2019 IL App (4th) 180285WC (issued May 2, 2019) Claimant filed a workers' compensation claim against her employer, a central Illinois school district.

 

Claimant sought review of the Arbitrator's decision before the IL WC Commission; the Commission affirmed and adopted the Arbitrator's decision.

 

Claimant filed a petition for administrative review to the Circuit Court, and requested that summons issue; the summons were issued the next day. Claimant failed to file a notice of intent or an affidavit in the Circuit Court within 20 days of receipt of the Commission's decision.

The newest amendment to Section 19(f)(1) of Workers' Compensation Act requires the appealing party to exhibit proof of filing with the IL WC Commission of the notice of intent to file for review in the Circuit Court or an affidavit of attorney setting forth notice of intent to file for review in the Circuit Court within 20 days of receiving the Commission's decision. Please note there are no extensions allowed.

 

As claimant failed to do so, the Appellate Court ruled the Circuit Court lacked subject-matter jurisdiction over her petition for review. Please note this means the Court is supposed to dismiss the matter on its own motion or on motion of the opposing party.

 

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4-30-2019; IL WC Fraudbusters Suffer Budget Cuts?; Social Security "No-Match" Letters Return and more

Synopsis:IL WC Commission WC Fraud Busters Suffer Budget Cuts?? Really—Is That Where Gov’t Budget Cutting Should Start?

 

Editor’s comment: Noting our State Government is awash in a tsunami of red ink, we were amazed and not surprised to receive news the IWCC is cutting its WC Fraud Busters budget yet again. This might be due to an across-the-board State budget cutting push to decrease all spending by 4%.

 

We note the IWCC isn’t appointing all the Arbitrators they could otherwise have but there is no true sense of “budget-cutting” anywhere in our State gov’t that I can tell or smell. The last thing we should be cutting are folks that will try to insure all WC claims are real and no one is taking advantage of the reasonable IL WC system.

 

Well, I am sure in all of the other 49 United States, workers’ comp fraud is sadly present and the other states care about limiting or stopping it. Other states are concerned when a phony claim is brought or someone is working when they are on TTD.

 

How does our IL State Gov’t waste money? Let me count just a few of the ways:

 

  • Our State still has human beings take highway tolls—many States have completely ended that wasteful concept and gone to fully automated toll roads.

  • Our State has seven, count ‘em, seven separate and redundant police departments—do we have the money to afford a do-nothing Secretary of State Police Department?

  • Our State has both a Comptrollers Agency and a State Treasurer—both State agencies do basically the same thing.

  • Illinois has a Toll Authority and the Department of Transportation that also do basically the same thing.

  • We have 88 State Agencies when we need about 22.

 

We are a land of redundancy and overpaid/overstaffed and “over-retired” gov’t workers.

 

Someday, I hope we, as Illinoisans, get our priorities back and realize the money spent to ferret out WC fraud is the sort of thing large businesses and employers look to when they decide to move to our State or grow businesses here. Everyone on all sides of the WC matrix need to tell the truth, the whole truth and nothing but…

 

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Synopsis: After a seven-year hiatus, our Social Security Administration is again notifying U.S. employers when W-2 records don’t match employee Social Security numbers. As the Scouts say—Be Prepared!!

 

Editor’s comment: For the first time in seven years, U.S. employers will soon be receiving Social Security number (SSN) “no-match” letters from our Social Security Administration when it has discovered the W-2 records completed by the employee and submitted by the employer don't match the Administration's records on employee names and SSNs. This is a warning to employers to carefully check the employee's information. The problem could be as innocent as a typographical error or as nefarious as a stolen identity.

 

The Social Security Administration has given employers an overview of frequently asked questions and steps to take upon receiving a mismatch letter, also called an "employer correction request notice."

 

Be Prepared When You Get a “No-Match” Letter

 

The new letters won't include the names and Social Security numbers of employees with mismatched SSNs. When you are put on notice, employers must register online with the Social Security Administration's Business Services Online (BSO) to find out whose SSNs are mismatched.

 

If an employer learns of SSN mismatches and does nothing, then U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have "constructive knowledge" that you have an undocumented worker. But if employers take action against an employee based solely on a “no-match” letter, you may be sued for discriminating against the worker based on citizenship or origin.

 

The Trump administration began sending these letters again to help strengthen the enforcement of immigration laws.

 

What to Do After Receiving a “No-Match”: Letter

 

  • Check your records for a clerical or typographical errors.

  • Notify your employee of the anomaly.

  • Give the employee a reasonable period of time to resolve the possible error(s) with the Social Security Administration.

 

Experts feel a "reasonable period" could be between 30 to 90 days. If the employee cannot resolve the mismatch with the Social Security Administration, you may then fire the worker.

 

Other legal veterans feel U.S. employers should not jump to conclusions when you receive mismatch letters. Tell all affected employee about the mismatch. If the employee doesn't respond, tell the Social Security Administration of the lack of response.

 

An employer may not want to receive no-match letters and do nothing. Employees who need to resolve SSN mismatches may need time off work to resolve or correct the issue. However, an undocumented employee is not likely to go the Social Security Administration but instead might ask the employer for extension after extension to resolve the matter, hoping the company will forget about the SSN mismatch.

 

Companies have the option of also using the administration's Social Security Number Verification Service (SSNVS), available through BSO. The service allows employers to verify SSNs before filing W-2 submissions. It cannot be used to prescreen candidates, and once employers have registered for SSNVS, they must use it across the entire organization, which can be an administrative burden. Some employers are choosing not to sign up for SSNVS.

 

Causes of Mismatch Letters

 

The cause of mismatch letters may be falsification, identity theft or a completely fabricated SSN.

 

One way to avoid most SSN mismatches is to use E-Verify. E-Verify checks the names, dates of birth and SSNs of new hires against the Social Security Administration's database. E-Verify can't catch cases of identity theft, when someone steals someone else's name, date of birth and SSN to obtain unemployment and disability benefits. But E-Verify should prevent most SSN mismatches with the Social Security Administration.

 

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