May 07, 2020

5-4-2020; Legal Efforts Continue with News on Depositions and IWCC Developments by Shawn Biery; John Karis Reports on False Identity Claim and Consideration of Evidence After Record Closed and more

May 07, 2020/ Eugene Keefe

Synopsis: Legal Efforts Continue In This Ever Changing World. News on Depositions and IWCC Developments, As Well As May 2020 Telephonic Status Calls. Thoughts and comments by Shawn R. Biery, J.D., MSSC.

Editor’s comments: The Covid-19 Litigation Impact Continues; However WC and Other Claims Litigation Marches On.

In one of the more recent Memorandums from the IWCC Chairman, the Illinois Workers’ Compensation Commission indicated they are suspending regular operations during the month of May 2020. In light of the withdrawal of the previously promulgated amendment generally known as the “Rebuttable Presumption” rule, another IL WC Committee will be formed to examine other possible actions that the IL WC Commission may take, in light of the Covid-19 Pandemic and its impact upon the actions of this Commission under the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act.

A Special Circumstance Arbitration Procedure has also been posted on the IWCC website. In that regard, all status calls will take place by phone and certain cases will be allowed to be set for in person hearings in June 2020. The IL WC Commission will continue cases to their next regularly scheduled 90-day continuance date, unless a hearing date has been set pursuant to the Special Circumstance Arbitration Procedure. Our KCB&A office has participated in the initial telephonic status and it was relatively well managed and productive. We continue to seek appropriate hearings to continue to attempt to resolve matters via all avenues available.

The IL WC Commission will also continue to conduct previously set Emergency Motion Calls for EMERGENCY motions, ONLY. An “Emergency Arbitrator” will be available at the locations and on the dates and times set via published schedule (updated on a weekly basis) for presentation of “valid” emergency motions only. “Valid” emergencies include issues involving the expiration of a statute of limitations, a party can reasonably be expected to suffer an unacceptable hardship, if not heard on an expedited basis. Motions which do not constitute “valid” emergencies will be stricken.

Emergency Motion Calls will generally run from 9:00 AM to 12:00 Noon at the below locations:

Chicago cases will be heard at the IWCC’s Chicago Office: Monday, Wednesday and Friday
Zone 1 cases will be heard at the IWCC’s Collinsville Office: Tuesday and Thursday
Zone 2 cases will be heard at the IWCC’s Springfield Office: Monday and Wednesday
Zone 3 cases will be heard at the IWCC’s Peoria Office: Wednesday and Friday
Zone 4 cases will be heard at the IWCC’s Chicago Office: Monday, Wednesday, and Friday
Zone 5 cases will be heard at the IWCC’s Rockford Office: Tuesday and Thursday
Zone 6 cases will be heard at the IWCC’s Chicago Office: Monday, Wednesday and Friday

Pro Se settlements may be presented to the Emergency Arbitrator on the second day of the Call, only.

Chairman Brennan advises that, prior to making use of the Emergency Motion Call, attorneys should engage in personal consultation and make reasonable attempts to resolve differences. The Chairman believes (and we concur) Illinois Supreme Court Rule 201(k) and Rule 3.4 of the Illinois Rules of Professional Conduct serve as appropriate guides for counsel during these exceptional times.

On the Deposition Front: Late last week, the Illinois Supreme Court entered an order temporarily amending Supreme Court Rule 206 to ease the requirements for remote depositions. The amended Rule is effective immediately and in relevant part notes “Where a deponent testifies from a remote location and no neutral representative or representative of an adverse party is present in the room with the testifying deponent, care must be taken to ensure the integrity of the examination. The testifying deponent may be examined regarding the identity of all persons in the room during the testimony. Where possible, all persons in the room during the testimony should separately participate in the videoconference. In furtherance of their obligations under Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(d) (Misconduct), counsel representing a deponent should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b) he or she may not consult any written, printed, or electronic information during the examination other than information provided by the examining attorney. Unrepresented deponents may be similarly instructed by counsel for any party.”

KCBA Attorneys continue to work to complete depositions as agreeable to continue to move matters toward some successful conclusion. We are also seeking June hearing dates as allowed to continue to attempt to move the litigated cases to conclusion in the interests of our clients.

This article was prepared by Shawn R. Biery. If you have any questions about current procedures, need an Illinois Rate Chart, or a handy reference guide to COVID Investigation and exposures, feel free to contact Shawn at sbiery@keefe-law.com.

Synopsis: False Identity Claim Causes Confusion and IL WC Commission Considers Additional Evidence After Record is Closed. Research and comment by John Karis, J.D.

Editor’s comment: The IL WC Appellate Court recently affirmed the IL WC Commission’s decision to consider the transcript from an earlier claim under a different name which aided in the disposition of the case where claimant admitted that he used a stolen identity.

In Centeno v. Illinois Workers' Compensation Comm'n, Claimant Centeno, filed an Application for Adjustment of Claim pursuant to the IL Workers’ Compensation Act seeking benefits for injuries he allegedly sustained on October 7, 2010, while in the employ of respondent, Minute Men of Illinois. Following a hearing pursuant to section 19(b) of the Act, the arbitrator found claimant’s injuries to be compensable and awarded him TTD benefits, reasonable and necessary medical expenses, and prospective medical care. The Illinois Workers’ Compensation Commission (Commission) reduced the award of medical expenses but otherwise affirmed and adopted the arbitrator’s decision and remanded the matter for further proceedings. On judicial review, the Circuit Court of Kane County increased the weekly TTD rate but otherwise confirmed the Commission’s decision.

While Centeno’s first case was pending in the IL Appellate Court, Claimant filed a successive “Petition for an Immediate Hearing” pursuant to section 19(b) of the IL WC Act. At the hearing on the section 19(b) petition, Respondent elicited testimony from claimant, suggesting that he had been employed under two different identities. Claimant admitted that he used the stolen identity of “Nelson Centeno”. It was also determined he filed a separate WC claim under “Robert Morales” against Countrywide Insurance alleging injuries to his back and legs from a lifting accident on August 7, 2014. Thereafter, claimant’s attorney requested that the proceeding be bifurcated due to a “breakdown” in the attorney-client relationship that made him question whether he could ethically remain as claimant’s counsel. The arbitrator granted the request. When the hearing resumed a month later, claimant’s attorney announced that he would continue representing claimant but moved to withdraw the section 19(b) petition. The arbitrator denied the motion to withdraw and heard additional evidence. Ultimately, the arbitrator declined to award claimant any benefits subsequent to the first section 19(b) hearing.

Claimant sought review of the arbitrator’s decision before the Commission. The IL WC Commission issued a decision and opinion on review, affirming and adopting the decision of the arbitrator and remanding the matter for further proceedings. The Commission in their decision commented on the disingenuous actions of claimant Nelson Centeno a/k/a Roberto Morales. It was noted Centeno filed a second claim under the name Roberto Morales. It was noted because of this admission, these two cases were so inextricably intertwined that the transcript in the Morales claim and the transcript in the Centeno claim would have to be considered together. The IL WC Commission in their decision amended the Application for Adjustment of Claim filed in the Nelson Centeno case and the Application for Adjustment of Claim filed in the Roberto Morales case, sua sponte, to reflect the name Nelson Centeno a/k/a Roberto Morales. The Commission also attached Arbitrator’s Decision and considered the transcript from the Roberto Morales case as an exhibit to the record.

The Commission noted that during oral arguments, claimant sought enforcement of the first arbitrator’s decision, along with TTD benefits and penalties for nonpayment of medical expenses. The Commission noted that the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act

On judicial review, the circuit court confirmed the decision of the Commission. Claimant appealed to Appellate court arguing the Commission’s decision is “null and void” because it exceeded its power by expanding the record on review to include trial transcripts and evidence from another case to support its decision. Claimant further argued that the Commission violated the law-of-the-case doctrine by erroneously concluding that it was without authority to award him the previously awarded medical bills, TTD and prospective medical.

The IL WC Appellate Court affirmed most of the Commission’s decision. They noted regarding the expansion of the record that Illinois courts recognize documents containing readily verifiable facts from sources of indisputable accuracy may be judicially noticed if doing so will aid in the efficient disposition of a case. Public documents are included in the records of courts and administrative tribunals are subject to judicial notice. In the instant matter, the Commission attached to its decision on review the arbitrator’s decision in the Morales case and considered the transcript from that case. The Appellate Court noted this information was readily verifiable and aided in the efficient disposition of the case by providing “a full understanding of the dishonest nature of claimant, i.e., that claimant admitted that he used the stolen identity of someone named “Centeno.”

The Appellate Court also affirmed the Commission’s finding the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act. They noted the Commission, as an administrative body created by legislative enactment for the purpose of administering the Act, lacks the inherent powers of a court and can only make such orders as are within the powers granted to it by the legislature. The only method provided by the Act for enforcing a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act.

We do not believe this case sets the precedent for considering transcripts from all other trials after the record is closed. What it does show is how in certain situations such as identity fraud it can allow the Arbitrators, Commission and reviewing courts to consider evidence after the fact. However we do not believe this applicable in all situations and will have to be assessed by a case by case basis.

This case also shows once again the only venue to enforce an award is circuit court and not the IL WC Commission. As the Appellate Court noted the Commission is limited in its abilities based on the power they have been granted by legislature.

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

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

April 28, 2020

4-27-2020; Gene Keefe on the End of the Covid-19 Presumption, Learning From IN WC and Counter-Attacking This Awful Disease and the Ones To Follow; Kevin Boyle, JD on IN WC and Covid-19; and more

April 28, 2020/ Eugene Keefe

Synopsis: Thoughts from Gene Keefe on the End of the IL WC Covid-19 Presumption, Learning From IN WC and Counter-Attacking This Awful Disease and the Ones To Follow.

Editor’s comments: The Covid-19 Presumption Cometh and the Presumption Goeth Away.

Last week, a judge in central IL knocked out the Covid-19 Presumption with a TRO or temporary restraining order—the main concern was the IL WC Commission didn’t appear to have the “power” or ability to issue such a rule. This presumptive standard for IL WC/OD cases was an issue reserved to the legislature with the Governor to then sign off on or veto.

This morning, without further ado, the IWCC had a conference call to confirm for you and I and everyone in the country they dropped the whole thing. They are going to rule on Covid-19 cases like all other claims—there won’t be a “presumption.” This doesn’t mean the IL legislature can’t pick it up and try to enact an amendment to the IL WC Act or an emergency rule or whatever. I personally hope they don’t and we just let the Arbitrators and Commissioners rule as they feel best and stop worrying about “presumptions” and “first responders” (whatever that might mean) and trying to figure out who is and is not an “emergency worker.” One can only smile to recall people who handle and sell cannabis were considered emergency workers!

Please see Kevin Boyle’s article below confirming IN WC didn’t waste hours and hours enacting a presumption rule. The IN WC Board can still rule an exposure caused a work-related disease. I vote IL Governor Pritzker and our IL Legislature stop worrying about the silly new WC/OD “presumption” rule and go on to focus instead on saving lives, ending the plague and we will figure out stuff at the IWCC like IN WC Board is more quietly doing.

Let’s Not Be Caught By Surprise Again, Folks, This Is Going To Keep Happening

Please understand these are my best thoughts and hopes for our nation and you, our readers. As part of the current pandemic battle, we are going to have to go back to being near each other at work this month or next. New Covid-19 exposures are sure to increase when that happens and the nutty media are certain to continue their “sky-is-falling” coverage of it because it makes great headlines.

I want everyone to understand we can and will win this fight and be much better prepared for future fights. This is NOT going to be the last pandemic of our lives—the Third World sent us this one and in my respectful opinion, we are sure to experience more of them because things across the globe aren’t going to dramatically change. Weird new diseases are certain to follow.

I feel we have to accept this new reality and get ready for more of it. We have to join together to do so. If we can stop the transfer of this awful virus from one human to another, we win. I believe we have to expect more and more of them. If we can’t stop and block pandemics, our economy and lifestyles are going to temporarily or permanently change and not for the better.

Pay Attention To OSHA Guides

As a first step, I feel every risk and safety manager in the U.S. has to read, memorize and implement these recommendations from OSHA in the link below. It has to be more “required reading” as we all start to return to job sites to allow us to eat and earn money until this scourge has ended.

https://www.osha.gov/SLTC/covid-19/controlprevention.html

Start with Better PPE

One great thought from me for all employers is to analyze and look for better PPE or Personal Protective Equipment. The cost of PPE in relation to ONE Covid-19 claim in your workforce is minimal. I don’t like masks and instead suggest “bucket hats” with large plastic shields for anyone and everyone. The idea of the “bucket hat” for men, women and children is simple—you can’t cough on me and I can’t cough on you. Please note the masks we see everyone wearing don’t typically cover your eyes and face. If someone coughs on your eyes and face outside the mask, you can get sick. It is also harder to touch your face, as we all do as much as 20 times a minute, if you have a plastic shield draped over it.

Here are some samples of what I am talking about from the web. You can purchase most of them on Amazon.com and have them delivered very rapidly. Please get going on this.

Gloves? When and where do employers issue them to workers?

Please understand that topic is fairly controversial but I recommend common sense. Gloves don’t protect you if you don’t use them wisely—some OccDocs just say skip the gloves and wash, wash and wash your hands some more. They also recommend no touching your face.

On the issue of gloves, I don’t completely agree they should be tossed aside in lieu of regular washing. If you or your workers are touching stuff that lots of other folks touch before you get it, like the U.S. mail or packages being delivered, I recommend you consider disposable gloves and handle properly in use and disposal.

Start Taking “No Touch” Temperatures and Ask Your Workers How They Are Doing

The EEOC just issued guidance allowing employers across the U.S. to take employees’ temperatures and ask them how they are doing. This information is HIPAA protected but employers need to start asking. You can and should now take temperatures with “no-touch” thermometers. Please note someone who isn’t running a temperature can still be a carrier but if you find out one of your workers has a temperature, send them for more testing, please!

Please note one of the major symptoms of Covid-19 is loss of smell or loss of taste. Again, there is a list of Covid-19 symptoms ever risk manager should know and be regularly asking your workers before work starts. When the next pandemic comes down the pipe, we need to figure out how to diagnose and attack that new one.

We appreciate your thoughts and comments. Please send any further recommendations on how to fight Covid-19 and other pandemics to follow. Please also feel free to post them on our award-winning blog. If you have questions/concerns, send me a reply and thanks.

Synopsis: Indiana’s Covid-19 Legal and WC/OD Landscape So Far. This is a “Must Read” for IN Risk and Claims Managers. Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Closures are here, but still we’re operating. Things Will Re-Open Soon.

I hope this Update finds you all healthy at home and your office. In Indiana, we’ve been largely spared some of the wild new orders issued by other states and governors on virus claims.

We do have a pending statewide shut down/stay at home order like every other state. The April 20, 2020 date was extended, to May 1, 2020. As of right now, the Indiana Worker’s Compensation Board is shut down to the public through May 1, 2020, and all hearings/pretrials have basically been continued until May. I predict the shutdown will get extended again barring some miracle.

Since the shutdown/stay at home order, the IN WC Board is still working. The IN Board and hearing members are actively issuing settlement and form approvals so that is helpful.

The Indiana Worker’s Compensation Board recently issued the following general guidance related to virus claims:

In Indiana, workers’ compensation benefits are paid by employers, not the State. Under our laws, the State cannot tell employers they must automatically cover employees who contract Covid-19, as Illinois tried to do. Whether an individual contracts the Covid-19 virus in the course and scope of their employment is a determination that must initially be made by the IN employer. This decision is routinely made at the time the employee notifies the employer of the disease/injury, or in this case, contraction of the Covid-19 virus.

It is well-accepted that first responders, as defined in P.L.113-2020, and health care providers, as defined at IC 16-18-2-163, as well as others directly involved in the provision of services to those exhibiting symptoms of Covid-19 are more susceptible to contraction of the disease as a direct result of their work duties. Others whose jobs necessarily entail close interaction with many people in a public setting are also more vulnerable to exposure and possible infection than those working remotely or in a limited office setting.

Employers are urged to consider making a prospective decision as to whether any vulnerable segment of their workforce will be presumptively covered under the provisions of the Indiana Worker’s Compensation Act should they:

a.)   Be quarantined at the direction of the employer due to a confirmed or suspected Covid-19 exposure,
b.)   Receive a Covid-19 diagnosis from a physician without a test,
c.)   Receive a presumptive positive Covid-19 test, or
d.)   Receive a laboratory-confirmed Covid-19 diagnosis.

Employers are encouraged to relay such decisions to their entire workforce and workers’ compensation insurance carrier/third party administrator as soon as possible in order to allay fears and expedite the claims process. Plans of action upon any occurrence listed above should also be communicated.

Finally, the Indiana Department of Labor has said it has no legal authority to declare a workplace emergency or change employer policies regarding infectious diseases, so they are relying on the CDC, U.S. Dept of Labor and other previously issued laws.

Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment, virus or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.