12-14-2020; Trying to Make Sense of COVID -19 Vaccinations--Ending the Great Pandemic of 2020; IL WC Subro Reversal in "Litigation Hellhole" to Protect and Preserve Subro Concept and more
/Synopsis: Trying to Make Sense of Covid-19 Vaccinations—Ending the Great Pandemic of 2020.
Editor’s comment: A Dozen Simple Common Sense Thoughts for U.S. Risk/HR managers, claims handlers and all our readers of the KCB&A Update.
If you get the vaccine, you are going to be immune at a 19 out of 20 rate at least. Thousands of test cases were analyzed and considered.
Please expect lots of government officials and other folks in the public eye to get the vaccination. Lots of folks may wait a month to be “safe” and insure they aren’t the first—that is fine but plan for the first shot in a month and get it!!
“Immune” means you can’t get Covid-19 from others and they can’t get it from you! You need to continue precautions for a week or two after getting the first shot.
You should strongly encourage EVERYONE in your workforce to get the shots, so all of your co-workers can’t get the virus and they can’t give it to others.
The United States has already had 16M+ cases of COVID-19 with approximately 300K deaths—we can end this in about 60-90 days if we can, as a country, get folks to use these very-effective vaccines.
You aren’t getting COVID-19 bugs injected into you if you get the vaccine—you are getting a very complex drug to kill and make you immune from the COVID-19 bug.
COVID-19 vaccines will not cause you to test positive on COVID-19 viral tests, which are used to see if you have a current infection.
If your body develops an immune response, which is the goal of vaccination, there is a possibility you may test positive on some antibody tests—you want to test positive for antibodies! Antibody tests indicate you had a previous infection and that you may have some level of protection against the virus.
Due to the severe health risks associated with COVID-19 and the fact that re-infection with COVID-19 is possible, people may be advised to get the COVID-19 vaccine even if they have been sick and treated for COVID-19 before. At this time, experts do not know how long someone is protected from getting sick again after recovering from a bout with COVID-19. The immunity someone gains from having an infection, called natural immunity, varies from person to person. Some early evidence suggests natural immunity may not last very long. The CDC won’t know how long immunity produced by vaccination lasts until there is more data on how well it works. Until then, they are recommending EVERYONE 16 and over get the shot. (Pregnant ladies are supposed to talk to your doctor first).
Receiving this mRNA vaccine will not alter your DNA—if you are being told that, the person saying it has no idea what they are talking about. Same for claiming there are “microchips” in the vaccine—what a hoot!!!
Why two shots? Well, after the first shot, the scientists feel you are safe from Covid-19 in a week or so but the second shot greatly improves your lasting immunity. Yes, lots of folks skip the second shot which leaves them less safe. Don’t take a chance and be in the headlines. Get both shots and be super-safe!
About 15% of folks experience soreness, fatigue, mild issues the day after the shots. Consider planning for a day off—or get the injection on a Friday!
My vote is every U.S. employer should engage in a program to encourage and cajole and inspire your workers to get the shots. Pay for the cost of the medicines if you have to. Bring vaccines and administering nurses or other medical personnel to your work places to make it easy on your workers. Have the company president and top managers get the shot to encourage others. Go back in a couple of weeks to encourage those who aren’t sure or want to wait.
Can We Force or Fire a Worker to Insure They Get the Shots?
As a veteran lawyer, I vote no. If you force or fire workers who won’t get the shots, they can
File an EEOC or IDHR beef against your company.
Directly sue in Circuit Court In Illinois or
Go through the EEOC or IDHR process that may result in a “right to sue” letter from the Feds or State.
If your company ends up in court in a fight over this issue, one of the unusual aspects of such litigation is, if Claimant is awarded a couple of bucks, you can owe all of their attorney’s fees and costs. Plaintiff attorney’s fees in such claims can be well into the hundreds of thousands of dollars. For that reason and various other reasons, I don’t feel comfortable telling clients and potential clients it is a good idea to fight with your workers to force them to be vaccinated.
For employees less likely to become infected or to infect others, employers should consider using the “carrot” approach rather than the “stick” approach. Such workers can and should be incentivized to be vaccinated as soon as possible. Suggested incentives can take the form of a reduction in health insurance premiums, cash bonus, time off work or something else of value to them. It may also be a good idea for your managers to let these employees know that, eventually, all of its workers may be required to be vaccinated to insure a safe and Covid-free workplace. For those employees who initially refuse the vaccine, employers should know passage of just a few weeks or a month will likely help so they can watch how public figures and friends react following inoculation. Once these recalcitrant employees see that their vaccinated co-workers, friends, and the vast majority of Americans (including former Presidents and their sports and entertainment idols) have suffered no significant ill-effects from the vaccine, then many of them will agree to be vaccinated. Of course, there may always be some employees who still refuse. It is a tough call to fire such workers for the reasons above—I vote no.
Please Learn About and Use V-SAFE
V-SAFE is a smartphone-based tool that uses text messaging and web surveys to provide personalized health check-ins after you receive a COVID-19 vaccination. Through V-SAFE, you can quickly tell CDC if you have any side effects after getting the COVID-19 vaccine. Depending on your answers, someone from CDC may call to check on you and get more information. Please register—for more info, go to this safe link: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/vsafe.html
Does the Employer Have WC Liability for Sickness/Injury Claims As a Result of the Shots?
As I have advised in the past, Illinois has an odd provision in our OccDisease Act that may mandate WC/OD coverage for sicknesses coming from the injections. Other states don’t appear to have such legislation.
In my view, I recommend you and your company try to be nice and pay for what you can to avoid creating an unnecessary WC/OD fight over what should be no more than a day or two of lost time. It might be a bigger issue if the worker has an unexpected allergic reaction to the injections—that is going to be hard to predict. But if we all take a responsible approach to the end of the pandemic, we are going to be asked to pay claims that technically might be defended. I feel many hearing officers across the U.S. are going to want employers to take care of their workers and I join with them to ask you to do so.
As you read this, there have been no reported deaths as a result of testing of any of the vaccines by Pfizer/BioNTech, Moderna or AstraZeneca. Most of the side effects of the three vaccines during testing have been mild and transitory. Why fight minor claims at the very end of this crisis? Let’s get healthy, dump the masks soon and go back to being a prosperous society!
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Synopsis: Southern IL “Hellhole” Circuit Court Treats WC Intervenor as Party to Third-Party Claim and Gets Appellate “Smack Down.”
Editor’s comment: Please note the 5th District Courts in Illinois are wildly pro-Plaintiff Attorney and also hilariously anti-business. The American Tort Reform Association outlines their research on their website. If you want to read more about it, go to this safe link: http://www.judicialhellholes.org/hellhole/2020-2021/cook-madison-st-clair-counties-illinois/
What I find surprising is the Appellate Court in that area also seems to be very pro-Plaintiff Attorney but every now and then, they pull one back.
This decision reversed what I assure our readers was an “anti-business” action by the Circuit Court. The employer was seeking recovery of a WC lien in the amount of about $130,000.00. The estimated cost of discovery was about $200,000—this projected discovery cost was not contested by Plaintiff. Plaintiff’s counsel wanted to allow all plaintiffs in that area to make demands for expensive and extensive discovery on intervenors to fend them off and allow “double-recovery” where a WC claimant could get their medical, lost time and permanency benefits and not have to pay anything back if there was a substantial recovery in third party litigation. One purpose of subro is to prevent double-recovery. We salute the Appellate Court for maintaining the intent and purpose of subrogation recovery in IL WC and third-party actions.
In a recent decision in Burdess v. Cottrell, Inc., 2020 IL App (5th) 190279, issued Dec. 1, 2020, the Fifth District Appellate Court ruled an Illinois Circuit Court committed error when it found an intervening workers’ compensation insurer in contempt for failing to comply with various discovery orders in an underlying tort suit filed by an injured employee against a third party. The Appellate Court accurately ruled under section 5(b) of the Workers’ Compensation Act [820 ILCS 305/5(b)], intervenors were allowed a very limited role in such litigation. For that reason the appellate court concluded the insurer did not become an active “party” to the underlying litigation by simply intervening to protect its lien. As a result, most of the trial court’s discovery orders pertaining to the insurer were improper and the trial court’s sanctions for the insurer’s failure to comply with the discovery orders was also improper.
Legal Background
In April 2016, Plaintiffs, a husband and wife filed a seven-count complaint against Defendants, Cottrell, Inc., General Motors, LLC, and Auto Handling Corporation, seeking damages for work-related injuries Plaintiff sustained on April 28, 2014, when he fell from the deck of a vehicle transportation rig working for Jack Cooper Transport. In July 2018, the WC insurer, Continental Indemnity Co. sought to intervene for the purpose of securing their employer’s/insureds lien as provided in section 5(b) of the IL WC Act. The Circuit Court granted Continental’s motion for leave to file a petition to intervene, without objection. Continental subsequently entered its appearance as intervenor.
Soon thereafter, Plaintiffs’ counsel issued written interrogatories to Continental and a request for production of documents. Continental objected, contending its role as an intervenor was greatly limited. It acknowledged it was subject to the subpoena power of the circuit court and accordingly produced an electronic file containing materials related to the underlying workers’ compensation claim of the husband, along with an itemization of the workers’ compensation benefits—these benefits comprised the WC lien.
Plaintiffs moved to compel discovery and for sanctions for Continental’s failure to comply with the discovery requests. Thereafter, the Circuit Court entered an order granting Plaintiffs’ motion to compel, overruling Continental’s objections, ordering Continental to fully respond to the discovery within 14 days, and denying Plaintiffs’ request for sanctions. Subject to the nonparty objection, Continental answered 15 of the 16 interrogatories. Continental responded to 45 of the 48 requests to produce and asserted additional objections.
Continental asserted production requests required it to comb through thousands of claim files to determine which claims were similar to the injuries suffered by Plaintiff, a task that would require 1.5 hours per file to review and redact the protected information, for a total of 4950 hours at a cost of $50 per hour for a skilled individual, totaling over $200,000.
The Circuit Court denied Continental’s motion to quash to the extent that it sought to relieve Continental of the obligation to produce workers’ compensation claim forms and reports of injuries completed by supervisors and/or drivers and injury reports filled out by drivers and/or supervisors for injuries. Treating the matter as one of “friendly contempt,” the Circuit Court observed Continental’s refusal to comply with the order to produce the information, held Continental in contempt of court, and imposed a penalty of only $25 for its noncompliance. The purpose of “friendly contempt” was to allow the matter to be appealed for a ruling that I am outlining right now.
Fifth District Appellate Court’s Opinion
The Appellate Court held an intervenor such as Continental was not a “party” to the underlying litigation, that section 5(b) allowed for, but did not require intervention, and after intervention was allowed by a trial court, the intervening insurer was not allowed to participate in the trial. The Appellate Court ruling indicated the record reflected Continental’s purpose in filing its motion for friendly contempt was not to cause undue delay or to dishonor the court.
Insurer Had No Direct Stake in the Outcome
The Court stressed that because Continental was not a party to the underlying litigation, it was not subject to the discovery mandates. In short, for Continental or Jack Cooper Trucking to provide discovery was meaningless. As a result, the circuit court’s discovery orders were improper, as were the minimal but actual sanctions imposed in one of the orders. The Court found the sum of $200,000 to produce the workers’ compensation claims as requested by Plaintiffs was “substantial and disproportionate” to Continental’s lien amount of $128,897.79.
Based on the foregoing, the Court reversed the Circuit Court’s discovery orders in relevant part. Moreover, because the discovery orders were improper, the Court also reversed the order holding Continental in contempt of court for violating the discovery orders.
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