8-10-2023; New Law Allows Observer Attendance at WC IME's with Video; Staffing Agency management in our State Just Changed with New Law; Murder at Arby's--Does WC Act Block Negligent Hiring Claim

Synopsis: New IL Law Allows Observer(s) Attendance at Work Comp IME's with Video.

Editor’s comment: IL SB 1748 was signed by the Governor and is now law. We assume but cannot confirm the driving force behind this change is ITLA or the IL Trial Lawyers Association that is one of the biggest political donor organizations in this State. The new legislation says:

Section 5. The Code of Civil Procedure is amended by changing Sections 2-1003 and 2-1007.1 as follows:

    (735 ILCS 5/2-1003)  (from Ch. 110, par. 2-1003)

    Sec. 2-1003. Discovery and depositions.

    (a) Discovery, such as admissions of fact and of genuineness of documents, physical and mental examinations of parties and other persons, the taking of any depositions, and

interrogatories, shall be in accordance with rules.

    (b) (Blank).

    (c) (Blank).

    (d) Whenever the defendant in any litigation in this State has the right to demand a physical or mental examination of the plaintiff pursuant to statute or Supreme Court Rule, relative to the occurrence and extent of injuries or damages for which claim is made, or in connection with the plaintiff's capacity to exercise any right plaintiff has, or would have but for a finding based upon such examination, the plaintiff has the right to have his or her attorney, or such other person as the plaintiff may wish, present at such physical or mental examination. The plaintiff also has the right to designate an additional person to be present and video record the examination. The changes to this Section by this amendatory Act of the 103rd General Assembly apply to actions commenced or pending on or after the effective date of this amendatory Act of the 103rd General Assembly.

We are confident this new legislative language applies to IL WC claims. It is possible IME doctors may increase their charges to deal with three folks being in their examination rooms.

An issue this new law might create is a possible malpractice action against a Claimant lawyer who doesn’t take advantage of the law to have someone present and/or video an IME.

If this practice becomes widespread, it would end the silly assertion, particularly from some Claimant attorneys in southern IL, that an IME doctor only saw the examinee for a couple of minutes. The duration of the IME would be documented in the video.

Please also note the video may show Claimant acting in a fashion contradictory to their claim. I have reviewed WC IME’s where the examinee outlined an injury to the wrong side of their body!

We asked an IME doc who we consider to be extraordinarily knowledgeable about this situation and got this response:

I’ve have IME’s videotaped on occasion, usually in personal injury cases and not WC. I have no issue with being recorded. I do a very typical and straightforward evaluation and I’ve nothing to hide. On occasion, the video captures inconsistencies or shows the patient doing something they has said that they are unable to do. There is almost always a rep from the patient’s lawyer’s office as well, and that is also fine for me. I do set ground rules that any observer has to be completely mute, cannot gesture or make any other actions that might direct the patient’s responses. I tell the rep/observer they get one warning, and if they ‘coach’ a second time I would stop the exam, but that has never been an issue.

My recommendation for everyone who has to deal with any controversy about this new law is to take it to the Arbitrator assigned. Our IL WC Arbitrators are aware of the new law and I am sure they will act in a professional and fair manner to resolve any dispute.

We seek your thoughts and comments. Please do not hesitate to post them on our award-winning blog at keefe-law.com/blog

Synopsis: HB 2862 becomes IL law greatly changing Staffing Agency management in our State.

Editor’s comment: IL House Bill 2862 is now the law in this State and was effective as of July 1, 2023. This bill creates significant changes to the Illinois Day and Temporary Labor Services Act (820 ILCS 175/).

Like most changes to IL law, there was no crying need for any of this and it continues IL anti-business and pro-litigation trend.

Among various changes, here are the major issues all Staffing Co. Managers will need to memorize:

• Right of Workers to Refuse Assignments to Third-Party Client Locations Where Labor Disputes Exist

Staffing agencies may not send a worker to a client where there is a pending strike, lockout, or other labor issue without informing the worker, in writing and in a language understood by the worker, of the labor dispute and the worker’s right to refuse the assignment “without prejudice to receiving another assignment.”

• Equal Pay for Equal Work

Staffing agency workers assigned to a client for more than ninety calendar days must be paid, by the staffing agency, at least the rate of pay along with equivalent benefits as the lowest-paid directly hired employee of the client performing at the same level of seniority and the same or substantially similar work.

Comparative work includes “substantially similar skill, effort, and responsibility … performed under similar working conditions.”

• Requirement of Labor Agencies and Third-Party Clients to Take Steps to Provide Oversight of Worker Safety

Staffing agencies have a statutory responsibility to provide some safety oversight of workers at third-party client worksites.  The third-party client also has related safety responsibilities under the amendments.

• Illinois Attorney General Can Now Seek Suspension or Revocation of Registration of a Staffing Agency for Violating the Act

It has long been unlawful under the Day and Temporary Labor Services Act for a staffing agency to operate without registering with the State of Illinois. Now, the Illinois attorney general will have the authority to request that a circuit court suspend or revoke the registration of a staffing agency for violating the Day and Temporary Labor Services Act.

• Civil Penalties May Be Brought by “Interested Parties”

If an interested party has a reasonable belief that a staffing agency or client violated the Day and Temporary Labor Services Act, the party may bring a civil action in a county where the alleged offenses occurred after exhausting remedies with the Illinois Department of Labor.

• Increased Registration Fees and Penalties

The annual fee to register a labor agency with the Illinois Department of Labor has tripled to $3,000 per agency (up from $1,000) and $750 for each branch office (up from $250).  A staffing agency or client that violates the Day and Temporary Labor Services Act will be subject to increased penalties.

From a WC perspective, remember both the staffing agency and its client are jointly responsible for work injuries. Primary liability is with the employer at the time of the injury, unless there is a written agreement to the contrary. If you need help with any staffing agency WC issue, send a reply.

We seek your thoughts and comments. Please do not hesitate to post them on our award-winning blog at keefe-law.com/blog

Synopsis: Murder at Arby’s—Does the IL WC Act Block a Negligent Hiring Claim?

Editor’s comment: IL WC Exclusive Remedy Provision Bars Mother's Suit Over Son's Murder by Co-Worker

In Price v. Lunan Roberts Inc., et. als, No. 1-22-0742, issued 08/08/2023, Decedent Price and an individual named Thomas were the only employees working the night shift at an Arby's restaurant in Hickory Hills, IL. Surveillance video showed Thomas clocked in for his shift at 10:04 p.m. About two minutes later, Price was seen on video gesturing toward Thomas. Thomas walked away from where he was preparing food and exited the surveillance camera. When Thomas returned into view of the camera, he was carrying a kitchen knife. 

The video depicted Thomas grabbing Price and he stabbed him several times. Decedent Price was able to escape through the back door but died as a result of his injuries, having suffered 27 stab wounds. Thomas fled but was later arrested and charged with murder.

Decedent Price’s mother filed suit against Arby's and Thomas. She alleged Defendants were liable for the negligent hiring, retention and supervision of their employees. Defendants filed a motion to dismiss the case and later filed a motion for summary judgment. They argued they were not liable because the mother’s exclusive remedy was under whatever coverage might be provided in the IL Workers' Compensation Act.

The trial judge granted the motion and an appeal was perfected before the IL WC Appellate Court.

The Appellate Court ruling explained the Workers' Compensation Act generally serves as the exclusive remedy for a person who is injured during the course of employment. However, when the injury results from a personal conflict between employees unrelated to their work, the Workers' Compensation Act may not bar a civil suit. In this case, the mother argued there was evidence that the murder was the result of a purely personal dispute between Price and Thomas. According to their supervisor, Price and Thomas frequently discussed video games during their shift. Price also sometimes gave Thomas rides home from work and gave him a portable video game console.

A forensic examination of Price's phone revealed text messages with an unknown person and appeared to reference drug transactions and indicated the unknown person was involved in similar transactions with Thomas. But the mother also admitted she did not know of any personal disputes between Thomas and her son. During the course of the criminal case against Thomas, no motive was conclusively established for his actions, either.

“The fact that Price and Thomas had some degree of a personal relationship does not mean that the incident was caused by a purely personal dispute,” the Appellate Court said. "Even if there is some evidence of a personal relationship between Price and Thomas outside of work, there is no competent evidence in the record that the attack was motivated by a purely personal dispute."

The Appellate Court affirmed denial.

To read the court’s decision, click here.

We seek your thoughts and comments. Please do not hesitate to post them on our award-winning blog at keefe-law.com/blog

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.