1-11-16; Understanding Email in Dealing with Your Defense Lawyers; Nathan Bernard on Important SS Rule Change in the Works; CA UR ruling to Threaten All WC UR and more

Synopsis: Understanding Email for Your Lawyers Handling Litigation Along with the Claims Handlers and Risk Managers We Report To.

Editor’s comment: The most basic technological tool used by virtually every competent attorney on a real time basis is electronic mail or email. It clearly has made the telephone, fax machine and overnight mail greatly less important to all insurance or self-insured legal claim handling. Email is an instrument that has completely changed the manner in which attorneys communicate with our clients, hearing officers and vendors. Used properly, email enhances communication with future and existing clients, thereby augmenting the attorney-client relationship. Almost-instantaneous email is a stark contrast to snail mail where documents could take a week or more to be created and sent to the respective recipient.

However, the improper use of claim email may prove to be a source of embarrassment, or worse, adversely impact the client, vendor, hearing officer or attorney. Care must be taken to ensure the sometimes informal nature of communication via email does not lead to a lack of consideration with respect to the substantive content of the communication. Recipients’ email addresses should be carefully checked and rechecked for pinpoint accuracy to insure you aren’t sending “stray” email to the wrong reader(s).

A great writer pointed out every email in a litigation claim should be composed as if someday an evidence exhibit stamp would appear at the bottom of the document. This caveat applies to emails from risk managers and claims handlers. The rules of proper spelling, punctuation, capitalization and grammar apply and should always be observed. If you copy anyone, all of your emails should start with a simple and clear salutation to the person you send it to first, so other recipients who are merely copied on the communication realize they are not the primary addressee. To maximize a recipient’s understanding of the importance of the communication, use the subject line in a simple but meaningful manner.

We are using/attaching Microsoft Word® documents less and less as email attachments for a variety of reasons—the main one is you have to keep resaving and re-dating a Word doc where email carries its own date/time when sent. As we point out below, since you have to save both the email and attachment, you are saving time to simply send an email.

We train all defense attorneys at KCB&A to be diligent in regularly checking and responding to emails. Our goal is to match or exceed our client’s intensity, so if a client is concerned about an important issue early in the morning or late at night, we try to get back to you on a 24/7/365 basis with great advice and needed research.

Lawyers Have to Save All of Your Emails, Even If You Don’t Assign Us The Claim/Litigation

As we outline above, email has replaced most other modes of communication to all parties in the course of representing a client. Although the obligations may vary depending upon the jurisdiction, in general an attorney must retain emails that have any impact upon the client’s representation and legal interests. Lawyers also have to save them consistent with local rule in the five states KCB&A handles. We have to carefully track and follow the law in individual jurisdictions concerning the retention, protection and storage of client files.

We are asked all the time if we made a settlement offer or filed a motion or some other legal task. If you want a copy of your lawyer’s settlement offer—ask them! If they can’t quickly send it along, you may have issues with your lawyer bigger than the handling of one claim.

We answer lots of emails about potential claims or legal issues. If you ask a KCB&A lawyer a hypothetical legal inquiry about a fact situation, we always like to err on the side of storage of your question and our answer about any legal topic. We will sometimes open a file without any billing until you authorize it. Much more often, we simply retain the email and any attachments in your general client file. We have the capability to search/locate any email to confirm your question and our answer. Case management software permits email to be attached to your electronic file so that all attorneys working on the matter may have access to it. KCB&A has a firm-wide program of email retention to insure all members of our defense team can locate key communications, to optimize your interests.

Please Consider “Replying to All” When Responding to Defense Attorney’s Email

When sending any outbound email, we routinely copy our trusted staff, usually to include a paralegal and secretary. We are responsible for staff and they have the same attorney-client secrecy issues lawyers have.

The purpose of copying staff in any response to our outbound email is twofold—it is much easier for them to follow what we are doing on any given file so they provide backup in keeping files up to date and managing the litigation. Copying our staff also allows them to incorporate our responses into the file and save, save, save what we are doing.

Maintaining Secrecy—Attorney-Client Privilege

In addition to the practical and ethical concerns noted above, the prevalence of email has raised a host of ethical/risk management questions. Primary among them is whether a lawyer may use email to communicate with a client without violating the confidentiality of their relationship. The conclusion is, as with all communications, an attorney must exercise reasonable care to insure he or she does not inadvertently disclose his or her client’s confidential information.

We appreciate your thoughts and comments—if you have a great idea or a new concept on handling email in litigated claims, please send it along. Please post your best thoughts on our award-winning blog.

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Synopsis: Proposed changes to Social Security regarding Workers’ Compensation Offset Age. To all of our readers, please feel free to tender public comments to the Social Security Administration by February 3, 2016. Analysis by Nathan S. Bernard, J.D.

Editor’s comment: KCB&A takes pride in handling claims for defense only so as not to run into conflicts in creating law or precedent unfavorable to our defense clients. We often receive views and comments on our articles from our colleagues on both sides of the bar. But we report on all available stories and facts pertinent to our practice and the plaintiff/petitioner bar may find this fairly important. It is also important to our other readers, specifically our clients or potential clients, as the only good file is a closed file and we would want to avoid re-opening a file we handled should the Social Security Administration come calling on a settled claim.

It is important to note Social Security Disability benefits may be paid at the correct amount when petitioners get workers' compensation benefits at the same time. There is a maximum total amount of combined benefits a recipient is allowed per month. Social Security will “offset” benefits to bring the total to the monthly amount allowable, sometimes completely until other benefits are no longer being paid. Currently, this happens until Petitioner reaches full retirement age (age 65) and begins collecting Social Security Retirement benefits instead of Social Security Disability benefits. That age is now being reconsidered to move up from 65 to 67 depending on the person's date of birth for those who reached age 65 on Dec. 19, 2015, or later. Very generally, full retirement age for those born in 1937 or earlier, to 1942 is 65; from 1943 to 1959 is 66; and after 1960 or later, is 67. Months are also taken into account depending on the exact day and month you were born in a given year.

Often, attorneys settling workers’ compensation claims will add “spread language” to contracts spreading out a lump sum settlement payment into a weekly/monthly amount so as to adequately ensure the offset amount is being taken into account correctly. There is no doubt Social Security will take a close look at the language of the settlement document when it is offsetting benefit amounts. If this language is not included in the settlement agreement, Social Security may ask for documentation of medical and legal expenses, which could be an unnecessary burden easily avoided by paying advance attention to detail.

What the Plaintiff/petitioner bar may soon need to take into consideration (depending on the result of the proposed changes) is being careful about drafting settlement language to ensure the spread language is correct and SS-approved, using the accurate date of birth to confirm the exact months for each individual petitioner, so their client isn’t receiving more than they should but also they are getting all their SS benefits they should each month.

The Social Security Administration is accepting public comments through February 3, 2016 to extend the workers’ compensation offset from age 65 to full retirement age. Comments on the proposed change may be submitted online at www.regulations.gov under docket no. SSA-2015-0018. Those commenting are cautioned to not include personal information such as Social Security numbers, because the comments will become public record. Comments may also be faxed to (410) 966-2830 or mailed to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Blvd., Baltimore, Maryland 21235-6401.

This article was researched and written by Nathan S. Bernard, J.D. You can contact Nathan at (312) 756-3726 or nbernard@keefe-law.com.

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Synopsis: California WC Ruling May Forecast Counter-Attack by U.S. Claimant Bar Against UR.

Editor’s comment: The national WC press is abuzz with news of a ruling by the California 4th District Court of Appeal on whether the exclusive remedy of the workers' compensation system may not be so exclusive after all. In King v. CompPartners, the Court said an injured worker could potentially assert a viable tort claim against a physician utilization reviewer for failing to warn him about the potential risks associated with the withdrawal from psychotropic medications.

The Court found the physician who provided a medical opinion as to the reasonableness and necessity of Claimant’s ongoing treatment with prescription medication had a doctor-patient relationship despite never seeing the patient or actually treating them. Either way, the Court said the doctor owed Claimant a duty of reasonable care.

In finding a duty was owed to an unseen Claimant, the Court did not address whether the doctor's duty encompassed some unstated obligation to advise the unknown Claimant about what could happen if he wasn't weaned off a specific medication. The ruling said Claimant should have been granted leave to amend his complaint to clarify whether this was the conduct for which he sought to hold the UR provider liable.

If Claimant were trying to hold the UR provider liable for wrongfully deciding a prescription wasn't an appropriate treatment for the on-the-job injury, then the Court said the workers’ comp system and its independent medical review processes provided the sole avenue for relief.

We don’t’ know if or how far this particular attack on UR may go—we are sure UR is a touchstone for the battle between the Claimant and defense bar on the Left Coast. UR entered the IL WC matrix in 2005-6 and still is evolving. It hasn’t reached the same level of acceptance as it has in California WC claims handling.

We feel the Court’s ruling indicating there is supposedly a patient-physician relationship in UR setting to be silly for numerous reasons—if you want more reasons than those outlined here, send a reply. We will continue to watch and report whether this new tort concept goes further.

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