1-13-2021; IL Gen'l Assembly Extends Rebuttable Presumption for First Responders by John Campbell; Pre-Judgment Interest on PI Claims Passed by IL Gen'l Assembly to See If Gov Will Sign It and more

Synopsis: Our Illinois General Assembly extends rebuttable presumption of workplace exposure; from John P. Campbell, Jr., J.D.

Editor’s Comment: In our recent KCBA update, we noted our IL Governor briefly extended the Emergency Proclamation through January 10th and may do so again until the vaccine(s) stem the tide of Covid-19 infections. In similar fashion, we predicted our IL State Legislature would also extend the rebuttable presumption of work-related infection for First Responders and “essential workers” beyond the original December 31, 2020 deadline in the original Statute.

If we could only predict the outcome of this weekend’s NFL playoffs as accurately!!

The General Assembly passed HB4276 on January 13, 2021 which formally extends the legal presumption of workplace exposure in the Occupational Disease Act. This rebuttable presumption now applies to diagnoses occurring through June 30, 2021.

The relevant language modified is as follows:

(4) The rebuttable presumption created in this subsection applies to all cases tried after the effective date of this amendatory Act of the 101st General Assembly and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before June 30, 2021 (including the period between December 31, 2020 and the effective date of this amendatory Act of the 101st General Assembly).

Please note any potential “gap” in the rebuttable presumption since December 31st has been bridged as well, so there will be no period where this rebuttable presumption does not apply since the March 9, 2020 effective date. We all  hope and pray that this extended timeframe for the rebuttable presumption will be the last one needed.  We say this not just as advocates for employers in this State, but with eager anticipation that vaccine distribution will put an end to all things Covid-19 very soon.

We continue to remind and encourage employers to remain vigilant in compliance with CDC and IDPH recommendations for PPE use and increased precautions to limit spread of Covid-19 in the workplace. These practices will help keep your employees safe and also afford employers the ability to rebut the presumption of workplace exposure.

This article was researched and written by John P. Campbell, Jr. Feel free to contact John about its content at JCampbell@keefe-law.com. Please also reply or otherwise contact the defense attorneys at KCBA for further guidance on building your defense to work-place Covid-19 claims.

Synopsis: ITLA Waits To The Last Hour/Minute To Unleash Pre-Judgment Interest on IL Businesses and Governments. Will Gov. Pritzker Sign?

Editor’s comment: The millionaire plaintiff personal injury lawyers that donate to and run the Illinois Trial Lawyers Ass’n waited and waited to keep this one out of the media for as long as they possibly could. Please remember the IL General Assembly has super-majorities for one party so the only thing that might impact anti-business and anti-government legislation is public opinion. The best path to stymie public opinion is to hold the bills you don’t want the public to read about until the very last minute of the last day.

I have handled personal injury litigation for claims from all over the United States and I assure my readers pre-judgment interest is basically an unearned bonus for Claimants and their wealthy lawyers. How would it work—well, there was a serious injury where Claimant filed suit and the matter went to hearing—the prep and trial probably took about three to four years. The jury came back with a verdict of $64M which remains the record in this State for construction injuries. With this new bill providing 9 per cent interest from the day the Defendants knew of the loss, it could have been five or six years from the date of injury to the date of the jury verdict. On a $64M verdict, 9% interest for 5 years is about $28.8M. So the defendants wouldn’t owe $64M, they would owe almost $93M for the same claim! Please also note this concept gives a Plaintiff with a solid claim every interest in not moving forward at no risk to themselves or their clients—it will be like sitting on an amazing investment that will only keep getting better and better.

Why did ITLA pick 9%--with respect to the members of the bar, I have literally no idea other than greed. Not kidding. No one is lending money at 9%; why should defendants have to pay box car numbers like this?

Is pre-judgment interest “fair”—not a bit. Some States have it but at dramatically lower values/rates. No one in a personal injury claim knows how the outcome will end up. Please also note this concept works wonderfully for a Claimant who loses their case before a jury but their lawyer goes before a friendly trial judge to get a new trial with a second bite at the apple—if they get a friendlier jury and a big verdict on the second bite, they can cash in on years of pre-judgment interest.

Please also remember interest is going to run and be payable on “pain and suffering.” I have no idea why someone would get interest on pain and suffering as if anyone knows what that is or how it is properly calculated. I feel juries come up with numbers for things like that by throwing darts at boards.

Similarly, interest is going to run on future damages like future medical bills and future lost wages!!! If a jury finds you have suffered future damages of either sort in a specific amount, you can tack 9% interest on it from the date the Defendant learned of the injury to the date of payment. I cannot imagine how that makes sense to anyone but a rabid Plaintiff attorney.

Be sure this concept, if the Gov signs it,  is going to increase the cost of insurance for businesses large and small. It is also going to hit local governments across the State where they have to deal with defense of personal injury claims—that is going to increase our taxes.

Please note this concept, if it becomes law is going to greatly encourage you and your business/government to seek out efficient and effective defense attorneys, like the team at KCB&A. Our focus is on closing files—if you want strong defense counsel that will work with you to get personal injury claims to appropriate reserves/values and close, send a reply.

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

Passages

We are chagrined to note former Almost-Certainly-Billionaire Michael Madigan is no longer Speaker of the Illinois House. It is interesting to note the rest of the media has rarely pointed out how “Iron Mike” has made zillions with his law firm that handles RE tax appeals for thousands of IL businesses. The odd math on that is one government agency—the County Assessor--over-charges for RE taxes and this State legislator then picks up the ball to cut the tax bite while taking hefty legal fees for himself. If you do the math from the Chicago Tribune on how much his law firm has been successful in cutting RE taxes and multiply by legal fees of 25% or 33.3%, former Speaker Madigan is wildly and legally wealthy. What I always thought was missing from this scenario is any legislative effort at any level to hold hearings and investigate and reform the RE tax system to get the taxes correct the first time and not require what I consider to be fake “appeals” of the never-ending poor math on RE tax assessment.

We are also advised Douglas McCarthy, one of nine Illinois workers' compensation commissioners, retired last week after two years on the job and many more years as an arbitrator and claimants' attorney, the IWCC announced. “Doug” McCarthy practiced work comp and disability law in Decatur from 1979 until 2012, when he was appointed workers' compensation Arbitrator by then-Gov. Pat Quinn. Gov. J.B. Pritzker elevated McCarthy to become a Commissioner in 2019. He also was member of a 2016 committee that provided a comprehensive review of the Rules of Practice Before the IL WC Commission, the first in 40 years. We wish him all the best.

Synopsis: Looking for New WC Defense Business in the Midst of the Great Pandemic!

Editor’s comment: As we start the New Year, the amazing defense team to KCB&A is looking for great clients who need defense help in the five States we handle—IL, IN, IA, WI and MI.

We are the only defense firm I know of that has adjunct Law Professors who taught workers’ comp law to lots of lawyers, risk managers and claims handlers and others.

We have strong recommendations for physicians/surgeons, nurse case management, surveillance operatives and others to fit the needs of your claims.

We are approved for defense work with all major WC insurance carriers.

We close defense files faster than any other firm I have ever seen—if you can tell us how to close files even faster, we will do it!

If you have interest in being represented by the top WC legal defense firm in the States listed above, send a reply or call Gene Keefe at 312 907 8226.

1-6-2021; The Great Pandemic of 2020 Continues--Will There Be An Extension of the Rebuttable Presumption?; Tracking the End of the Pandemic--GET SHOTS!!!; Passages and more

Synopsis: The Great Pandemic of 2020 Continues. Update on IL WC Rebuttable Presumption for First Responders from John P. Campbell, Jr., J.D.

Editor’s Comment: Our IL Governor briefly extended the Emergency Proclamation through January 10th and may do so again until the vaccine(s) stem the tide of Covid-19 infections. The question for Workers’ Compensation observers is whether the rebuttable presumption of work-related infection carries into the new year.

Our research came across an updated Corona Virus Disaster Proclamation dated 12/11/20; according to the proclamation, it is to be in effect for 30 days or through January 10th. We can expect similar proclamations to be issued while Illinois and other states struggle to control Corona Virus spread and implement the vaccine to achieve herd immunity. We all look forward to the day these emergency proclamations end and we can ditch the masks and take in a ball game. In the interim, what does all this mean for workers’ compensation claims or more specifically, claims of workplace Covid-19 infection under the Occupational Disease Act?

Even though the Emergency Proclamation was extended to  January 10th, we did not read anything in the Proclamation which addressed last year’s amendment to the Occ Disease Act and specifically, there is nothing (yet) to suggest the rebuttable presumption of workplace exposure will extend beyond December 31, 2020. Pursuant the amended Statute from last year:

(4) The rebuttable presumption created in this subsection applies to all cases tried after the effective date of this amendatory Act of the 101st General Assembly and in which the diagnosis of COVID-19 was made on or after March 9, 2020 and on or before December 31, 2020.

It is our reasoned impression that this bracketed timeframe for the rebuttable presumption of workplace exposure/diagnosis was designed to coincide with the Governor’s original disaster proclamation. However, the Statute language cited above compels a hard end to this rebuttable presumption with the arrival of this New Year. We reckon the Petitioner’s Bar will argue for an extension of this presumption but until our IL State General Assembly acts, we will argue no such rebuttable presumption continues to exist for any alleged Covid workplace infection or diagnosis in 2021.

Please note, this can change with the stroke of a pen, in retroactive fashion by our State Legislature, just as it did last year. For this reason, it is critical for employers to remain vigilant in compliance with CDC and IDPH recommendations for PPE use and increased precautions to limit spread of Covid-19 in the workplace in order to rebut the presumption of workplace exposure.

This article was researched and written by John P. Campbell, Jr. Feel free to contact John about its content at JCampbell@keefe-law.com. Please also reply or otherwise contact the defense attorneys at KCBA for further guidance on building your defense to work-place Covid-19 claims.

Synopsis: Tracking the End of the Great Pandemic of 2020—Get the Shots!! It Will Be Certain to End and We Can Burn the Masks!

Editor’s comment: There is no current issue more important to U.S. Business and the Workers’ Comp Community. I again urge everyone of you to demand the vaccine for you and your work-place and use it when it is available to you and your work-force. As I have advised, if your workers refuse, I don’t recommend discipline or termination—if you aren’t sure why, send a reply.

As of today, At least 4,836,469 people in the United States have received a dose of a Covid-19 vaccine, according to the Centers for Disease Control and Prevention, far short of the goal federal officials set to give at least 20 million people their first shots before the end of December 2020. If you do the math, at present, around 1% of U.S. citizens have been vaccinated. We have to do better, everyone!

The U.S. government said Tuesday that it had delivered more than 17 million doses to States, territories and federal agencies. There is more to come as vaccine manufacturers continue to work hard to get their product to market. The shipments, which came after a record-setting race to develop, study and approve a vaccine, have marked a turning point in the global Pandemic when deaths and cases continue to set records.

U.S. Federal health officials recently acknowledged the vaccine rollout had had a slower-than-expected start and said they did not have a clear understanding as to why only a portion of the doses shipped across the nation had made it into our arms. The C.D.C. reported 429,066 people in nursing homes and long-term-care centers had been given shots through a federal program, though more than 3.2 million doses had been distributed for those facilities. Deaths in those facilities have accounted for more than a third of the total coronavirus deaths in the country for most of the Pandemic.

Federal regulators have given emergency approval to vaccines developed by Pfizer-BioNTech and Moderna. Both vaccines require patients to receive two doses spaced about 21 days apart. In addition to allocating vaccines to States, territories and some federal agencies, the C.D.C. also distributes doses to three small countries that have special agreements with the U.S. government: Palau, Micronesia and the Marshall Islands.

Most of the first vaccines have been given to front-line medical workers and nursing home residents. The C.D.C. said that its data might lag. This table shows how many shots have been distributed and given in the five States KCB&A covers:

Name

Pct. of people given a shot

Doses distributed

Shots given

Doses used

Iowa

1.9%

120,175

60,137

50%

Indiana

1.5%

355,825

100,487

28%

Illinois

1.4%

538,300

176,586

33%

Wisconsin

1.2%

266,675

67,398

25%

Michigan

1.0%

478,800

99,040

21%

Source: Centers for Disease Control and Prevention

Every State was granted an amount of the vaccine roughly in proportion to its population. Some states, like Alaska, North Dakota and Utah, are supposed to receive supplements for tribal governments that have elected to receive their vaccines through the state, rather than through the federal Indian Health Service.

According to the federal data, South Dakota, West Virginia and North Dakota had administered the most doses per capita among states, and Kansas had administered the fewest.

The work to distribute the vaccine comes at one of the darkest points of the pandemic. More than 355,000 people in the United States have died after contracting the virus. The numbers reflect a national rollout of first doses that began in December — the first step toward protecting residents from a virus that continues to devastate the country.

“Watchers”—the Phenomenon of Folks that are Worried/Afraid to Insure They Are Protected via and/or from the vaccine. What I Am Hearing From Clients and Friends--I don’t want the shots—it hurts and might injure me more!

Do you like dining in the cold? Do you enjoy having to go back to your car to get the dopey mask? Do you understand hundreds of millions across the globe will receive the shots and will be rendered healthy and safe?

I have a number of friends and readers who are not willing to get the vaccine to insure they can’t be infected and, at some point, not infect others. Please note one of the oddest issues of Covid-19 is you can have the disease and not have any symptoms or know you might be spreading it. If you get the shot, odds are you aren’t going to get Covid-19 and at some point, won’t be able to transmit the disease you can’t get to others.

Most  “watchers” are waiting due to concerns a COVID-19 vaccine is tied to confidence in testing and development process. There is no question those who would get COVID-19 vaccine are more trusting of human testing and drug development process.

I have extensively researched it and I cannot locate a single fatality due to the use of any vaccine currently approved or otherwise in development. Across the globe, hundreds of thousands of people have been tested.

Overall, 19% of the U.S. public has a great deal of confidence the research and development process in the U.S. will produce a safe and effective vaccine for COVID-19, while another 45% say they have a fair amount of confidence. About a third (35%) say they have not too much or no confidence in this process.

Among those who say they would definitely or probably get a vaccine, more than eight-in-ten express either a great deal (30%) or a fair amount (54%) of confidence in the research and development process. By contrast, 55% of those not planning to get a coronavirus vaccine say they have not too much or no confidence at all in this process.

I want to go to a restaurant and eat at a table inside. I want to throw away the dopey masks and have my kid safely at a schoolroom being a kid. We are all in this together, folks!!!—please get your shots and press others to do so too.

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

Synopsis: Passages

Editor’s comment: I/We salute former Arbitrator Anthony (Tony) Erbacci who decided to take his pension rather than continue doing solid work as an IL WC Arbitrator. I didn’t always get the nod from him in contested claims but I can always say, he carefully listened and was a consummate professional. He will be missed.

The defense team at KCB&A also salutes the passing of Attorney Arthur Phillips, may he rest in peace. He was a fixture at the IL WC Commission for decades. He was a past President of the Illinois Workers' Compensation Lawyers Association and was highly regarded for both his legal acumen and his quick wit. Art was well regarded by those who practiced with him, including me. He was a solid advocate for his clients. Mr. Phillips was an Eagle Scout and a veteran of the U.S. Army.

Synopsis: Looking for New WC Defense Business in the Midst of the Great Pandemic!

Editor’s comment: As we start the New Year, the amazing defense team to KCB&A is looking for great clients who need defense help in the five States we handle—IL, IN, IA, WI and MI.

We are the only defense firm I know of that has adjunct Law Professors who taught workers’ comp law to lots of lawyers, risk managers and claims handlers and others.

We have strong recommendations for physicians/surgeons, nurse case management, surveillance operatives and others to fit the needs of your claims.

We are approved for defense work with all major WC insurance carriers.

We close defense files faster than any other firm I have ever seen—if you can tell us how to close files even faster, we will do it!

If you have interest in being represented by the top WC legal defense firm in the States listed above, send a reply or call Gene Keefe at 312 907 8226.

12-28-2020; PART TWO--Trying to make sense of COVID -19 Vaccinations--Ending the Great Pandemic of 2020; Comments from Gene to Another IL WC Blogger and more

Synopsis: PART TWO--Trying to Make Sense of Covid-19 Vaccinations—Ending the Great Pandemic of 2020. Last Blog of 2020!!!

Editor’s comment: More Simple Common Sense Thoughts From Gene Keefe for U.S. Risk/HR managers, claims handlers and all our readers of the KCB&A Update.

1. Please note Dr. Fauci and everyone in the world of “pandemic-a” are sure we can live with masks and gloves and washing our hands for years to come if we don’t buy into the vaccines.

2. There are some folks that I can only characterize as “anti-vaxxers” who are worried if you get a shot, you might turn into the Hulk, Frankenstein or a werewolf. There is no evidence anywhere that indicates your genes or DNA will change if you get the shots.

3. Learn about “Operation Warp Speed.” For all of our readers, we can and will attack this virus and end the Great Pandemic of 2020, I am hoping by no later than April Fool’s Day.

4. Details on OWS or Operation Warp Speed are online at https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html

5. Our government is spending literally 10’s of Billions to get safe vaccines out to every American who will use one. I salute my sister Ellen who already got the first vaccine shot and is going to get the next in about three weeks. Yes, her arm was sore and she got over it!!!

6. Current U.S. population is about 328M. We have almost 19M cases of Covid-19 and about 320K deaths. Americans have to get together, like we did after we were attacked at Pearl Harbor and sign up and stop this craziness. Get two shots!!!

7. We need every American to join in Operation Warp Speed to get the word out to family and friends—everyone needs to get the vaccine as soon as it is available to you.

8. I am sure from reading about thousands of test cases--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.

9. Please expect lots of government officials and other folks in the public eye to get the vaccination. Lots of folks—that I call “watchers” 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!!

10. I told my readers: “Immune” means you can’t get Covid-19 from others and they can’t get it from you. I want to apologize and confirm I have been advised by Scott G, one of my great readers that we need to keep the masks and gloves and washing stuff until the Feds tell us to stop. Someone in the medical industry is going to give us the “all clear” and we need to wait and listen for it!

11. You should strongly encourage EVERYONE in your workforce to get the shots, so all of your co-workers can’t get the virus.

12. 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.

13. 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.

14. 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.

15. 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).

16. 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!

17. 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!

Please, please get on this. We have to stop the craziness in Washington and around the globe. If we don’t get together, the concept of herd immunity may take us into 2023 or 2024 with masks and gloves and a sick and sorry economy.

Can We Force or Fire a Worker to Insure They Get the Shots?

I told you last time and I am telling you again, 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 their workers to force them to be vaccinated.

The vaccines are coming soon to a hospital or drug store near you. Sign up yourself. Put up signs or lapel pins or whatever you have to do to let the “watchers” know you got the shots and you are still tough and fair in handling your WC claims.

Remember if you don’t get the shot, you can eat outside in the cold and crab about the sanctity of your DNA and whatever. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Gene’s Comments on Another IL WC Great Blogger’s Concepts for The Trade.

Editor’s comment: A reader recently sent Attorney Mike Helfand’s blog from a year ago this coming week. Mike is a solid and devoted advocate for injured workers. I wanted to share my thoughts on some of his concepts for you. Woodruff, Johnson & Evans is also doing a great blog and is a solid source for everyone on all sides to read.

1. Illinois work comp is a no fault law. You don’t have to show anyone was negligent if you get hurt on the job. Gene’s thoughts—there are cases where your workers can’t figure out how they got injured—that may result in denial. There are also cases where the workers unreasonably endanger themselves, resulting in denial. While I agree with Mike for the most part, the burden remains with the IL worker to document a work-related event.

2. It’s a felony for an employer not to have workers comp insurance if they do business in Illinois and have employees. Gene’s thoughts—please memorize this statement. Mike is completely accurate. There are criminal charges and massive fines for operating a company in Illinois without WC insurance coverage. If you need help or want to discuss, send a reply.

3. You are eligible for work comp the moment you start working. Gene’s thoughts—Mike is right, I have one client who got mad about a short-termer who filed a claim, it isn’t a defense that the worker has only been around for a short time. Please don’t shoot the messenger!

4. If you need medical treatment, 100% of your care needs to be paid for. No co-pays or out of pocket expenses. Gene’s thoughts—some day the business community in IL may want to revisit this but right now, Mike’s right.

5. You get to choose your own doctor for treatment. Gene’s thoughts—Mike’s right, “ish.” I suggest all the IL claims adjusters who read this consider UR and IME’s to slow the unfettered level of medical care in some IL WC claims. I have one claim where Claimant got “trigger point” shots—what a complete hoot… Please UR requests for trigger point shots and discograms and medial branch blocks and other medical silliness.

6. Lawyer fees in almost every case cannot exceed 20% of what is recovered for you. Gene’s thoughts—yep.

7. Almost every case is worth something. Gene’s thoughts, as I said above, someday IL WC has to have a filing fee or something to slow the idea of having Claimant lawyers file completely hogwash claims and then try to get high nuisance value for baseless stuff.

8. What your case is worth depends on how severe your injury is, the treatment you have, your wages, your recovery, your age, the future treatment you might need and many other things. Gene’s thoughts—Mike is right a year ago and right now.

9. Once you settle, you typically lose your right to more medical care. Gene’s thoughts--That is how IL WC works. Mike is again correct.

10. If you go to trial and win, you get medical benefits as relates to that injury for life. Gene’s thoughts—see number 9 above.

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