5-20-2019; Illinois’ Legal System Continues to Get More Judicial “Hell-Hole-y"; The Defense Team at KCB&A Welcome Chicago’s Amazing New Mayor Lori Lightfoot and more

Synopsis: Illinois’ Legal System Continues to Get More Judicial “Hell-Hole-y.”

Editor’s comment: The American Tort Reform Association puts out a Rotten Tomatoes-type ranking of U.S. litigation systems they call Judicial “Hell-Holes.” Their goal is to let you, me and your friends know what things in our courts start to smell of limburger cheese. In my view, what just happened to our State stinks to high heaven. Now we have to wait and see what our wacky Illinois courts do with this new and shocking concept. Please also remember the terms in this legislation like “latent injury” and “statutes of repose” aren’t truly defined other than in the minds of the Plaintiff bar—in my view, if the judiciary blindly accepts this legislation, without requiring clarity, they are going a very long way toward appearing to me to be the minions of their campaign benefactors.

As a caveat to my readers, I strongly recommend you contact your insurance brokers and ask what to do about insurance coverage for this new and unprecedented risk. All U.S. General Liability Insurance policies have a standard exclusion for claims by an employee, and all Work Comp insurance policies have a standard exclusion for civil claims against the employer—because civil claims were very limited in our State until this new law was enacted. In my view, and in the view of many commentators, current IL business insurance coverage leaves these sorts of claims in a Never-Land. The reason for my Never-Land comment is this shocking new exposure didn’t exist in this goofy State until last Friday! Don’t be caught in the lurch whatever you do.

I also have an article by an excellent legal scholar who feels this mess is going to either be declared unconstitutional or be allowed to exist but the concept won’t start for 25 more years—if you want that article, send me a reply. Either way, please assume the fun people at ITLA or the IL Trial Lawyers Ass’n who are behind this concept are going to find some Sad Sack claimant to trot in front of favorable judges and then our Appellate/Supreme Court justices to see if they can get the courts to make this new idea work the way they want it to work so they can cash in giant legal fees in doing so.

Either way, on May 17, 2019, IL Governor JB Pritzker signed SB 1596 into law. ITLA or the IL Plaintiffs’ Bar introduced legislation in both the Illinois House and Senate (SB1596) to override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering,2015 IL 118070 (2015), where the Supreme Court held the IL Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy for Illinois workers who suffered exposures, also confusingly called “latent injuries” for conditions such as asbestosis and mesothelioma. Ed Matushek wrote the position paper of the IARDTC or Illinois Association of Defense Trial Counsel opposing this unnecessary legislation, and testified in opposition before both the Illinois Senate Judiciary Committee and the House Judiciary – Civil Committee. The Illinois Senate and House both voted to approve along party lines, without even considering any alternative to keep such claims in the IL worker’s compensation system.

SB 1596 is supposed to be legislation that helps workers who develop what are called “latent illnesses or injuries” after coming in contact with asbestos or other toxic but supposedly hidden substances in the workplace. Legal scholars feel this is impermissible special legislation that will eliminate strict liability of employers for only these injuries under the long-established work comp program and increase the threshold of proof required by a special class of injured workers in order to obtain recovery. SB 1596 basically doubles the amount of attorneys’ fees to be paid by the injured worker from the statutory 20% under the worker’s compensation system by moving the worker’s claim against the employer to the civil tort system, where the trial lawyers can assess their attorneys’ fees at 40% or more of the recovery.

One source indicates campaign contributions by our wealthy trial lawyers seeking this new law gave Illinois politicians and judges nearly $40 million during the past 17 years. We always feel judges/justices who accept campaign donations from Plaintiff lawyers trying to make new law should recuse themselves when the laws are brought to them to analyze their constitutionality.

KCB&A’s top liability lawyer, Bradley Smith was quoted in several national news sources to say:

This new law, if used as its advocates intend it to be used, will revive claims in the civil suit arena that were already barred by the Worker’s Compensation Act and the corresponding Illinois Occupational Disease Act’s statute of repose, he said. Employers should be ready to attack those potential claims aggressively from the onset. This is because the constitutional viability of applying this law retroactively is questionable at best. Bradley Smith said he was confident the law would face numerous legal challenges.

Please note this law is being jammed down the throats of the IL State Chamber and other great advocates on the management side of IL business with no negotiations or counter-balance in costs being offered by IL labor. This is not an “agreed bill,” which is the genteel way such things used to get done with give and take from both sides of the aisle. In the People’s Republic of Illinois, I can sadly forecast more gloomy news for our employers and business leaders, as the Plaintiff bar seeks to cash in.

An alternative to achieve a legislative goal of insuring some recovery for the injured employee would have been to lengthen or even abolish what is being called the WC “statute of repose” period for “latent injury” claims but always keep recovery in the longstanding system of Illinois work comp. That is not what SB 1596 does. Removing the exclusive jurisdiction of such claims from the Illinois WC Commission has consequences that may hurt the constituents our Legislature seeks to assist by creating unlimited and possibly business-busting tort liability for Illinois employers in our court system for such claims, and may have the effect of eliminating any existing insurance coverage for such claims, as I outline above. This can and will drive even more Illinois businesses and employers out of our State or into bankruptcy protection.

SB 1596 ignores the rationale for the exclusive remedy provisions of the Illinois Work Comp Act and the Workers’ Occupational Diseases Act. These Acts impose liability without fault upon the employer and, in return, prohibit expensive and unpredictable common law suits by employees against the employer. The exclusive remedy provision found in Section 5 of the Acts is part of the grand exchange in which sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, the company is also relieved of the the cost of defense and business-busting jury verdicts.

Reasonable legislation would have extended the length of the twenty-five repose period under the Acts and keep the employee’s remedy in the worker’s compensation system. Instead, this new bill places recovery for such injury in the civil tort system, where the worker relinquishes the advantage of strict liability of the employer, and as a practical matter, doubles the amount of attorneys’ fees that will be paid by the injured worker. Most important, all Illinois employers will be surprised to find that they may be suddenly uninsured for claims under this law. The practical effect of this law is to subject Illinois employers to unlimited liability for employees’ “latent injury” claims, and at the same time strip Illinois employers of their insurance for such claims. SB 1596 will adversely affect the Illinois economy, and likely reduce or eliminate the likelihood of a viable recovery by the injured worker, defeating the supposed purpose for this legislation.

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Synopsis: The Defense Team at KCB&A Welcome Chicago’s Amazing New Mayor Lori Lightfoot.

Editor’s comment: Ms. Lori Lightfoot was inaugurated as our City’s Mayor today. She called for unity, not divisions, returning to a mantra of, “We are each other’s business.” She even mentioned our late Mayor Harold Washington, saying she felt his spirit in the room.

Mayor Lightfoot’s biggest applause came when she called for an end to the city’s legendary political corruption, most—not all—at the aldermanic rather than mayoral level.

She said: “Stopping [corruption] isn’t just in the city’s interest. It’s in the City Council’s own interest. No official in the City of Chicago, elected or appointed, should ever profit from his or her office. For years, they've said Chicago ain't ready for reform. Well, get ready, because reform is here."

Assuming she wins an initial City Council organizing vote next week and has a working majority, Lightfoot’s biggest task will be to find billions to fill a gaping hole of at least $740 million in the pending 2020 City budget. Lightfoot had better hope all of those new committee chairs she named feel they owe her, because she’ll need their votes on some very, very difficult fiscal matters that will come up quite soon.

Where will the money come from? There are no answers yet, but lots of expectations from many who voted for Lightfoot for more spending on things such as anti-gang-violence efforts, affordable housing, expanded mental health services and the like. And looming are negotiations with the Chicago Teachers Union over another new contract, and the union seems to be gearing up for another never-ending, never-satisfied war. They later indicated they want at least $2 billion that isn’t in the budget and those evil wealthy people better be ready to pony up.

From my perspective, Mayor Lightfoot is a crystal clean lawyer and solid business woman. I don’t know what her true genius is but she also has lots of geniuses around her, which is twice as good. She is, for the first time in recorded memory trying to bring in an actual City risk manager who will watch and manage GL, WC and other claims, like cities and small governments across our country have been doing for decades. We hope to see the end of the incredibly odd way such things have been managed for decades.

I have offered her team my best thoughts and ideas for the City to transition to

• Preventing/stopping and then investigating all incidents,

• Managing claims when the unforeseen happens,

• Getting injured workers back to sedentary and light work asap,

• Trying to slow or stop litigation where possible, and

• Bringing the City of Chicago into a new age of great GL and WC claims management.

I will try to keep my readers posted as this process continues.

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

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.

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

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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