7-5-2023; "Artifical Intelligence" Comes With Less-Than-Intelligent Programming; New IN WC Rates and more

Synopsis: Real-Life Lawyers remain smarter than Artificial Intelligence!! Well… some of us anyway. Thoughts/comments by John P. Campbell, J.D.

Editor’s Comment: We have all seen and read recent reports of how Artificial Intelligence programs like ChatGBT will revolutionize many areas of business. There are even predictions such technology will drive many folks in various industries out of work with the breakthrough program’s amazing ability to put together essays, arguments and otherwise compile data in an organized manner.

Well, you may not want to fire your attorneys and send your lap-top to court for you just yet….

A federal judge in New York City is threatening sanctions against attorneys for submitting a brief with citations … to fabricated cases!

While verifying case citations  within the brief filed with the federal court, Senior U.S. District Judge P. Kevin Castel of the Southern District of New York found the pleading was “replete with citations to nonexistent cases.” YIKES!!

Upon further inquiry to the attorney for filing a brief loaded with bogus citations, the judge came to find out the research for case-law was completed not by the lazy lawyers, or even a sloppy paralegal, but rather, ChatGPT!!

The embarrassed attorney was reported to be a veteran practitioner, but admitted in an affidavit that several of the cases had fabricated citations which were produced by Artificial Intelligence software ChatGPT. In his explanation, the attorney asserted he has never utilized ChatGPT as a source for conducting legal research prior to this occurrence and therefore was unaware of the possibility that its content could be false.

It was further alleged that ChatGPT had “assured” the attorney that the cases cited were real “and can be found in reputable legal databases, such as LexisNexis© and Westlaw©,” according to the attorney’s affidavit. We find this excuse to have little merit. Using a new and relatively untested program to develop an argument for your client is bad enough, but to not even check the case citations to verify accuracy may lead to sanctions against the attorney.  

Technological developments in recent decades have certainly improved efficiency in the practice of law, just as it has in other industries. On-line research tools such as Lexis©  and Westlaw©  save hours of research time, formerly achieved via hours and hours scouring a law library.  However, when it comes to crafting unique arguments for the specific facts of each case, it’s hard to imagine any computer could employ the nuance needed to zealously represent clients in litigation. The problem relates to programming, in our view.

Nick Critelli, the Chair of the ISBA Ethics Committee published this:

DO NOT use ChatGPT and other AI platforms as legal research tools. While they can be helpful in thought processing, they are not a substitute for legal research tools. If you ask for a legal citation to support a proposition, the citation will most likely be FAKE. For example, when I ran a test here is what I received: "Case precedent such as "In re Estate of Robeson, 824 N.W.2d 222 (Iowa 2012)" reinforces the standard for removal of an executor/administrator for cause under Iowa Code §633.675, and the Administrator's conduct, in this case, fulfills the criterion set out therein." Looks good and is persuasive --- EXCEPT the case and statutes are FAKE. The case at that citation is actually a Michigan Court of Appeals case Stand Up for Democracy v Sec'y of State, not even remotely related to the issue.

So I confronted ChatGPT about its fake citations and here is the reply:

"We are writing to bring your attention to an emerging concern in the legal community regarding the use of artificial intelligence (AI) and specifically ChatGPT in the preparation of legal briefs and other legal documents. While AI technology undoubtedly provides numerous benefits, recent instances have raised serious concerns about the accuracy and reliability of the cases and statutes it may cite as an authority.

It has come to our attention that AI-generated content, including legal briefs, may sometimes include references to fictional cases or statutes. This poses a significant risk, as it can undermine the credibility of the arguments presented and potentially mislead the court or other legal professionals involved in the case.

We strongly advise all legal practitioners to exercise caution when relying solely on AI-generated content and take appropriate measures to verify the accuracy of the citations provided. While AI can be a valuable tool in legal research and document drafting, it should not be solely relied upon without proper human review and validation."

Our best advice is to stick with your flesh and blood attorneys who write their own briefs and cite cases they actually researched and read before filing with the court!

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

Synopsis: Indiana WC New TTD and PPI Rates Changed for Injuries On and After July 1, 2023.

Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D

Editor’s comment: Indiana TTD and PPI Rates Went Up For New Injuries beginning on and after July 1, 2023.

The Indiana WC rates haven’t changed in a very long time, so this is a big development.

You don’t need to increase those rates for injuries that happened before 7-1-23. The new rates apply only for new injuries/incidents that occur on and after 7-1-2023.

You can also always find the updated Indiana WC rate chart on our law firm website, too: www.keefe-law.com.

Or send a reply to Kevin at KBoyle@keefe-law.com.

5-29-2023; Gender-Based Violence Will Soon Be a Challenge for All IL Employers; Struggling to make sense of what is called "Long Covid;" Happy Memorial Day and more

Synopsis: Gender-Based Violence Protections Expanded and May Now Bring the Focus of New IGVA Claims on IL Employers.

Editor’s comment: As I have advised my readers for some time, Illinois is a One-Party State and will remain so for a generation or more. This concept means the IL business community has little say on what is being done in the IL legislature and administrative agencies. Our goal is sending this to you is to insure you are aware of and prepared for these new amendments. I also want our readers to understand the importance of stopping/ending gender-based violence whenever and wherever possible.

The Gender Violence Act was first started in Illinois in 2003. The Act was focused on protecting people in intimate situations when violence became part of the relationship for whatever reason. What has just changed and what is important to Illinois business and local communities is when/how IL and U.S. employers with Illinois operations might get pulled into these challenging situations.

These recent changes have been passed by both houses of the IL General Assembly and Governor Pritzker is expected to sign off on the amendments shortly. The aim of the new amendments are to enhance protections for employees who have experienced gender-based violence, ensuring a safe and friendly work environment.

The Amendments also mean a “deep pocket” is being brought into this malaise of litigation. When two simple folks might bring IGVA claims against one another, it would be pricey to start and maintain the litigation.

When all IL employers are now part of the matrix, they have money to pay judgments, encouraging more attorney involvement and expensive, protracted claims. We are not sure how the insurance companies are going to handle IGVA coverage, as some of the asserted gender violence actions have to be arguably intentional and to some extent uninsurable. I am also confident an IGVA claim brought against a small business could easily bankrupt a company due to the high costs.

1.     Expanded Definitions

The revised IGVA broadens the scope of what constitutes gender-based violence. It now includes not only physical acts but also psychological, emotional, and economic abuse. I assure you this will mean the cost of prosecuting or defending such claims is going to be moderately to very expensive, as psych experts are very, very pricey.

This expansion recognizes that gender violence can take many forms and ensures that victims are “protected” regardless of the type of abuse they have arguably endured.

2.     Protections for All Employees, including Those Working in Small Businesses.

Previously, the IGVA only applied to employees who worked for an employer with 15 or more employees. However, the recent changes eliminated this threshold, extending protections to all Illinois workers, regardless of the size of the employer. This means that even those working for small businesses can seek redress under the IGVA if they experience gender-based violence. It also means if you have a “mom and pop” shop, Mom and Pop can bring claims against each other.

3.     Reasonable Accommodations

One of the significant additions to the IGVA is the requirement for employers to provide “reasonable accommodations” to employees who are victims of gender-based violence.

Reasonable accommodations may include changes to work schedules, relocation of the employee’s workspace, or implementing additional security measures.

These accommodations aim to ensure that employees can continue their work without fear of retaliation or further harm.

Please also note this concept is going to be truly challenging for a small company where it could be difficult, if not impossible to change work schedules or relocate work spaces.

4.     Confidentiality and Privacy

To protect the privacy and confidentiality of victims, the IGVA now prohibits employers from disclosing information related to an employee’s status as a victim of gender-based violence, unless required by law or with the employee’s consent.

This provision is designed to encourage victims to come forward and seek help without the fear of their private information being exposed.

From the employer’s perspective, all information on gender-based violence has to be kept secret and provided to managers/supervisors on a “need to know” basis.

5.     Training and Awareness

The amendments to the IGVA emphasize the importance of education and awareness in preventing and addressing gender-based violence in the workplace.

IL Employers are now required to provide training to their employees on recognizing and responding to gender-based violence.

By fostering a culture of understanding and support, workplaces can become safer and more inclusive environments.

The recent changes to the Illinois Gender Violence Act represent a significant change in blocking gender-based violence. These amendments expand the scope of the law, ensure equal protection for all employees, mandate reasonable accommodations, safeguard confidentiality, and promote education and awareness.

At KCB&A, we are dedicated to helping employees understand their rights and navigate the complexities of employment law. If you have questions about the Illinois Gender Violence Act or need assistance in addressing gender-based violence in your workplace, our experienced attorneys are here to provide guidance and support. Please send a reply.

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

Synopsis: JAMA Study Outlines the Struggle With What Is Called “Long COVID.”

Editor’s comment: Sorry, folks I don’t believe in this concept, at all and the sooner the U.S. WC and medical industries starts to block it, the faster it will disappear.

Initial findings from a study of nearly 10,000 Americans, many of whom had COVID-19, have uncovered new details about what some doctors call “long COVID.” This is defined as a post-infection set of conditions that some doctors and scientists feel can magically affect nearly every tissue and organ in the body. I find that concept to be completely baffling.

Clinical symptoms are truly questionable, in my opinion. Symptoms can vary wildly. They are supposed to include fatigue, brain fog (whatever that is), and dizziness. Some people feel the difficult to verify symptoms may last for months or years after a person has COVID-19. The research team, funded by the National Institutes of Health, also found that what is called “long COVID” was more common and severe in study participants infected before the 2021 Omicron variant.

The study, published in JAMA is coordinated through the NIH’s initiative, a nationwide effort dedicated to understanding why some people develop long-term symptoms somehow related to COVID-19, and most important, how to detect, treat, and prevent long COVID. The researchers hope this study is the next step toward potential treatments for long COVID, which they assert affects the health of millions of Americans.

Researchers examined data from 9,764 adults, including 8,646 who had COVID-19 and 1,118 who did not have COVID-19. They assessed more than 30 symptoms across multiple body areas and organs and applied statistical analyses that identified 12 symptoms that set apart those with and without long COVID: post-exertional malaise, fatigue, brain fog, dizziness, gastrointestinal symptoms, heart palpitations, issues with sexual desire or capacity, loss of smell or taste, thirst, chronic cough, chest pain, and abnormal movements.

Again, from my view, everything bad that goes wrong with a human can qualify to be a “symptom” of what is being called “long Covid.” Why not include thinning hair, beer bellies and bad breath?

Then the researchers established a scoring system based on patient-reported symptoms. By assigning points to each of the 12 symptoms, the team gave each patient a score based on symptom combinations. With these scores in hand, researchers identified a meaningful threshold for identifying participants with long COVID. They also found that certain symptoms occurred together and defined four subgroups or “clusters” with a range of impacts on health.

Based on a subset of 2,231 patients in this analysis who had a first COVID-19 infection on or after Dec. 1, 2021, when the Omicron variant was circulating, about 10% experienced long-term symptoms or long COVID after six months. The results are based on a survey of a highly diverse set of patients and are not final. Survey results may next be compared for accuracy against an array of lab tests and imaging.

There are Supposedly 200+ Symptoms of Long Covid!!!

To date, more than 100 million Americans have been infected with SARS-CoV-2, the virus that causes COVID-19. In my view, the vast majority of those folks have completely and fully recovered following a short bout with the virus. The Great Pandemic of the 2020’s is over.

As of April, the federal government’s survey estimates about 6% of those infected with the virus claim they continue to experience and suffer from hundreds of different symptoms termed together as long COVID. Patients and researchers have identified more than 200 symptoms associated with long COVID. Almost all of the symptoms are subjective and unverifiable. There are no lab tests for this condition.

One can only speculate if folks that didn’t suffer from “short Covid” could make the same claims?

How Does This Impact Workers’ Comp?

It is my hope the WC hearing officers across the U.S. start to take a tough view on dealing with the “long Covid” concept. In short, we all suffered from this Great Pandemic. We all recovered after a short period of illness. It is my strongest hope we don’t let folks come to our hearing sites to complain of whatever they will claim “brain fog” might be to seek benefits.

Please also note almost none of the alleged symptoms of this condition change one’s ability to work in any way. And almost all of the asserted symptoms are impossible to objectively verify and/or treat. That said, I am sure there are “pain doctors” and others that want to create giant medical bills for American employers to deal with.

I remember when everyone in IL WC was getting cubital tunnel surgeries—we had to be the number one State in the Union for that condition because we were giving folks who got the surgery lots of money. When the Arbitrators stopped awarding benefits, the money stopped.

In my view, the “long Covid” concept should also go the way of the dodo bird. The faster the U.S. WC matrix kicks this concept to the curb, the better—in my view.

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

Synopsis: Happy Memorial Day!!

Editor’s comment: God Bless the men and women who made the necessary sacrifices to keep us safe. We salute them.

5-9-2023; What You Need to Do When a Machine or Device Causes a WC claim in IL; Important Ruling on Medical Rights and the Right to Maintenance Benefits in IL WC and more

Synopsis: What you need to do when a machine/device causes a work comp claim in Illinois

Editor’s comment: When a worker is involved in a work-related accident, especially one involving a machine or other mechanical device owned by the employer, companies can be confronted with challenging questions regarding preservation of the device causing or contributing to the accident/injury.

Risk, safety and claims managers should know the issues caused by Illinois law with an understanding of the importance of preserving the contrivance/mechanical device with a plan in place to ensure proper action is taken when an accident happens.

Please note this concept is similar but not identical to the OSHA concept of "lock out/tag out (LOTO)." If you have concerns about the technical difference between this advice and what LOTO means, send a reply.

An employer’s preservation of evidence causing injury serves dual purposes.

• First, it protects the employer from potential liability for spoliation of evidence. This includes third-party actions against the employer as well as a potential direct action by an employee against the employer. In Schusse v. Pace Suburban Bus, the IL Appellate Court held an injured worker's claim for negligent spoliation against an employer was not barred by the Section 5, the exclusive remedy provision of the Illinois Workers’ Compensation Act.

This appellate decision means the failure of an employer to take a device causing injury out of the work place and then possibly changing, fixing or losing it can make the employer a litigation target with unlimited civil damages over and above the WC claim.

• Second, preserving evidence protects the employer’s ability to pursue third-party subrogation against other potential at-fault parties, such as product manufacturers, installers, maintenance providers and other vendors.

When does an employer need to preserve evidence? In order for a duty to preserve evidence to exist, the Illinois Supreme Court set forth a two-prong test.

• First, there must be an agreement, contract, statute, special circumstance, or voluntary undertaking which gives rise to a duty to preserve evidence of a device that caused or contributed to injury.

• Second, there must be a showing that a reasonable person in the employer’s position should have foreseen evidence was material to a potential civil action.

Illinois courts have not clearly defined what constitutes a “special circumstance” giving rise to a duty to preserve evidence. In Martin v. Keeley & Sons, Inc., the Illinois Supreme Court, noting the lack of a precise definition, suggested a request to preserve evidence is sufficient to create a “special circumstance,” although our highest court also held an employer-employee relationship alone is not. Given the relative ambiguity and uncertainty of what may or may not be a “special circumstance,” ignoring this rule and not preserving evidence can be a risky proposition in Illinois.

Where a duty to preserve evidence exists, failure to observe it subjects an employer to potential liability for spoliation of evidence. Spoliation of evidence is a form of negligence and is a recognized cause of action in Illinois. In order to prove up a spoliation claim, a plaintiff must prove:

1. Defendant breached the duty to preserve evidence by losing or destroying evidence;

2. Loss or destruction of evidence was the proximate cause of the plaintiff’s inability to prove an underlying lawsuit; and

3. As a result the plaintiff sustained civil damages. Martin, 2012 IL 113270.

If you have a worker injured because of a machine/device, you have to take it out of service and remember/track what you did with it until you are sure there isn't going to be litigation involving that machine/device.

If you aren't sure, contact the defense team at KCB&A or simply send a reply.

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

Synopsis: Illinois Appellate Court affirms denial of prospective fourth surgery or maintenance benefits for worker injured in attack. Please see highlighted text below.

Editor’s comment: In Currey v. IWCC, Claimant Currey worked for New Ashley Stewart Inc., a retail clothing store. Her job duties included making daily bank deposits. On June 29, 2012, Currey left her employer’s premises to make a bank deposit. On her way out the door, an assailant attacked her from behind and snatched her purse from her right shoulder, running off with the store's money.

Later, Currey noticed her arm was starting to hurt. She went to the hospital, was assessed with a shoulder strain and released with restrictions of no use of the right arm. After this, Currey continued to complain of pain.

In September 2012, Dr. Joseph Schwartz determined Currey had supraspinatus tendinosis with a possible partial-thickness tear, as well as disk herniation and thecal compression at C5-C6. Dr. Shaun Kondamuri later diagnosed cervical radiculopathy, a left-center cervical disk herniation at C5-C6 and "right upper extremity pain presumably related to the above."

In November 2012, Dr. Zeshan Hydar performed a cervical discectomy and fusion at C5-C6.

In March 2013, Dr. Schwartz opined Currey had rotator cuff tendinosis with partial-thickness tearing of the supraspinatus. Thereafter, Claimant Currey underwent a right shoulder arthroscopic rotator cuff repair and subacromial decompression in April 2013. During the procedure, Schwartz observed a small tear in the anterior portion of the supraspinatus tendon, as well as a crescent-shaped tear in the subacromial space, both of which he sutured.

In October 2013, Currey saw Dr. Mark Cohen. She complained of constant tingling and numbness in her pinky and ring finger. Dr. Cohen opined this condition was causally related to her work accident.

Currey returned to Dr. Schwartz again in January 2014. She complained of right shoulder pain and occasional spasms. Dr. Schwartz recommended a cubital tunnel release, and Currey underwent this procedure. Please note a cubital tunnel release is for the elbow, not the shoulder.

In June 2014, Currey underwent a functional capacity evaluation or FCE. She was assessed as capable of light-duty work and given permanent restrictions.

Please note I don’t feel there is any defense value in authorizing/obtaining an FCE—this claim is another example of how worthless these tests are. If you aren’t sure of my recommendation, please send a reply.

One week later, Dr. Schwartz concluded Claimant Currey had reached MMI and discharged her from care.

In August 2014, Currey began seeing Dr. Howard Freedberg. The next month, Currey underwent a magnetic resonance imaging arthrogram of the right shoulder that disclosed undersurface thinning of the supraspinatus involving up to 50% of the tendon thickness, without a full-thickness tear.

In November 2014, Dr. Freedberg recommended a second right shoulder arthroscopic rotator cuff repair, subacromial decompression, biceps "tenotomy vs. tenodesis" and possible distal clavicle excision.

In January 2015, Claimant Currey saw Dr. Lawrence Lieber. He noted decreased strength in Currey's right shoulder, tenderness to palpation in the right shoulder and range of motion decreased secondary to pain, among other symptoms.

Dr. Lieber opined Claimant Currey’s treatment up until this point appeared reasonable and necessary, but he said her current complaints did not require any further treatment and that she had reached MMI from the work accident as of June 18, 2014.

In February 2016, Currey returned to see Dr. Freedberg reporting neck achiness and constant, severe pain in her right shoulder and arm. Dr. Freedberg recommended right shoulder arthroscopic surgery.

Dr. Freedberg also issued a report stating he "absolutely disagree(d)" with Lieber’s conclusions. He said he believed Currey’s condition was causally connected to the June 2012 work incident, and he said he was not surprised that “(Dr.) Lieber denied the causation as in all my years and having read many reports from this doctor he has NEVER agreed with causation in any patient according to my experience."

Claimant Currey filed an IL workers’ compensation claim seeking benefits for injuries that she sustained to her spine, right arm and shoulder.

The parties stipulated Currey suffered a work-related accident but disputed the amount of temporary total disability benefits owed, whether Currey’s current condition was causally related to the accident and whether she was entitled to prospective medical care in the form of another surgical procedure recommended by her treating physician.

An IL WC Arbitrator awarded Currey TTD benefits from July 2, 2012, until the date she began working part time for another employer, and maintenance benefits from that date through January 2015.

The Arbitrator found Currey had reached MMI on Jan. 8, 2015, and that she had failed to prove that her condition after that date was causally connected to her work accident. The arbitrator, therefore, denied prospective medical care and related expenses incurred after that date.

The Illinois Workers' Compensation Commission three-person panel modified the arbitrator's decision to find Currey’s current condition was causally related to her work accident, but the surgery recommended by her treating physician was neither reasonable nor necessary. The commission denied medical treatment and related expenses after Jan. 12, 2015, which was the date it found Currey had reached MMI.

The Commission panel also vacated the Arbitrator's award of maintenance benefits and awarded temporary partial benefits from Jan. 2, 2012, through Jan. 12, 2015.

An IL circuit court judge affirmed the Commission’s decision.

The Illinois Appellate Court, WC Division ruled the Commission's refusal to award the arthroscopic shoulder surgery recommended by Dr. Freedberg was not against the manifest weight of the evidence.

“Although Dr. Freedberg strenuously disagreed with each of Dr. Lieber's opinions, it is the Commission's province to judge the credibility of witnesses, to weigh the evidence and to resolve conflicts among expert medical opinions,” the court said.

The Appellate Court also ruled the Commission did not err in denying maintenance benefits to Currey. The Court explained “if the claimant is not engaged in some type of physical rehabilitation program, formal job training or a self-directed job search, the employer is not obligated to provide maintenance.”

I wish every adjuster, risk manager and defense lawyer in this state would read and memorize the paragraph immediately above this one. It is my opinion, very few folks know of this rule or follow it.

Here, the Court noted, Claimant Currey did not explicitly testify that she continued looking for jobs after she began receiving Social Security benefits, nor did she produce any logs, other documents, testimony or other evidence detailing her efforts to find work. Without such evidence, the Court said, the commission’s decision to vacate the arbitrator's award of maintenance benefits was not against the manifest weight of the evidence.

To read the court’s decision, click here.