10-3-2016; Use Caution Using Credit Checks in Hiring by Lilia Picazo; Answers from Last Week's IL WC Article; Consider Pittsburg Biomechanics in Your Next Claim; Vote NOW! and much more

Synopsis: If You Run Employee Background/Credit Checks, Read This! Illinois Appellate Court in Ohle v. Neiman Marcus Group ruled IL employers cannot use credit checks to deny employment to sales associates job applicants. Analysis by Lilia Picazo, J.D.

Editor’s Comment: We are not fans of courts telling businesses how to operate and protect themselves from scammers. On September 27, 2016, the Illinois First District Appellate Court reversed the Circuit Court's ruling in favor of Defendant Neiman Marcus. The Court found Neiman Marcus violated Illinois’ Employee Credit Privacy Act when it denied Plaintiff Ohle a job in 2012 after running a credit check, which revealed several civil judgments against her and accounts in collection.

In 2012, Catherine Ohle applied for and was denied a “Dress Collections Sales Associate” position at Neiman Marcus after failing a credit check. Ohle filed suit arguing the use of credit checks violated the Illinois Employee Credit Privacy Act. This Act “prohibits an employer from inquiring into a potential employee’s credit history and prohibits an employer from refusing to hire an applicant or discriminating against the applicant because of his or her credit history.” 820 ILCS 70/10(a) (West 2012).

Neiman Marcus admitted Ohle applied for, was interviewed, and offered the sales associate position contingent upon completing a successful credit and background check. Neiman Marcus admitted the failed credit check was the reason it did not hire Ohle or other potential sales associates. Plaintiff sued them for this decision. Neiman Marcus moved for summary judgment arguing there were no genuine disputes of any material facts. Neiman Marcus claimed the “access” exemption to the Act allowed their action and they denied they engaged in unlawful practices alleging a satisfactory credit check was a “bona fide occupational requirement” for a sales associate position who handled money. It argued the sales associate position had “access” to personal or confidential customer information by accepting credit application and entering the information into a POS register. 

Cook County Circuit Court Judge Kathleen Kennedy agreed the sales associate position fell within the “access” exemption and granted summary judgment in favor of Defendant Neiman Marcus. The IL Appellate Court disagreed noting the “access” exemption was too broadly interpreted. A ruling in favor of Neiman Marcus would exempt all retail sales employees from the protections of the Act intended by the legislatures.  The Court reasoned sales associates were “neither managers nor select few employees” entrusted by Neiman Marcus to handle credit card applications. The court found sales associates were instructed to place credit card applications in a locked drawer for handling at a later time by a cash credit office.

The Appellate Court panel wrote “… most stores, including retail stores like defendant’s would be exempt and employers would be allowed to deny employment to citizens who face ‘financial hardships that are often unpreventable’ due to the ‘harshest economic we’ve seen in decades’ and who are not able to obtain employment despite ‘bad credit’” in situations such as Ohle’s.

Neiman Marcus argued two additional exemptions:

(1) sales associates had unsupervised access to cash and merchandise valued at over $2500, and

(2) sales associates had signatory power over business assets of $100 when issuing gift cards or refunds over $100.

The Court found sales associates did not have unsupervised access to merchandise and cash valued over $2500 because associates were supervised by managers and monitored by surveillance. The Court further found sales associates performed regular job duties when issuing gift card or refunds over $100. The Court found the duties did not arise to a signatory power over Neiman Marcus’s assets, as they did not have access to the department store’s bank accounts or authority issue checks on behalf of the store.

The Appellate Court remanded the case back to the Cook County Circuit Court for trial.

We consider this an anti-business decision and all HR managers should be aware of it. This ruling is especially important for our clients and other business entities that may use credit checks to deny employment. The Appellate Court’s ruling signifies that business entities cannot use a single credit check metric to deny employment to an applicant.  While one can argue a credit check reflects an applicant’s level of trustworthiness, the Appellate Court’s ruling narrows the use of the credit check to higher level positions with access to sensitive business assets.

The research and writing of this article was performed by Lilia Picazo, JD. Lilia can be reached at lpicazo@keefe-law.com for any questions regarding workers’ compensation and employment law.

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Synopsis: Answers from Last Week’s Article on IL WC--Always Consult with Keefe, Campbell, Biery & Associates on Four Types of Claims and More!! Check out the correct answers below.

Editor’s comment: We have recently reviewed a number of claims that were previously handled by other firms, including some “house” defense counsel operations. What we saw were lots of mistakes, some potentially expensive. We did our best to correct issues and point the claims in the right direction to rapid closure, sometimes finding ways to save lots of money.

The four types of challenging WC claims are

·         Death Claims;

·         Amputation Claims;

·         Total and Permanent Disability Claims and

·         Claims that Involve MSA’s or Medicare Set-Asides.

Here are Ten Simple Questions you might want to ask your existing defense firm about these challenging claims to see if they know what they are talking about. They shouldn’t have to research these sorts of issues.

1.            In an IL death claim, if the only survivor is a 15 year-old child, can the weekly death benefits be paid to the child? No, children/minors have no standing at the law; the money would have to be paid to the child’s guardian.

2.            In an IL amputation claim, can you safely accept the claim and pay weekly permanency benefits? No, once you are aware of the fact of the amputation, you have to pay the full amount to the injured worker all at once. If you do anything else, there is a high risk of penalties and attorney’s fees in an amount as much as 70% of what is owed. We don’t agree the IL WC Act says this but the Appellate Court, WC Division says that is the law.

3.            In a total and permanent disability claim in this state, can the employee receive benefits from a source other than the employer and its insurance carrier? Yes, the Rate Adjustment Fund. If you need more information on the RAF, send a reply.

4.            How many “types” of total and permanent disability claims are there in Illinois Work Comp? There are three—does your defense attorney know what they are?

5.            Can an injured worker adjudicated to be totally and permanently disabled also work and earn additional money? Yes, the IL Courts ruled a statutory total and permanent disability claimant can work and make money while also getting a significant tax-free weekly pay check for life.

6.            If you are settling a claim with an MSA, can there be a reversionary clause allowing the amount “set-aside” to be returned to the employer or its carrier? Yes.

7.            Under what circumstances can a weekly IL death benefit be payable to a survivor for more than 25 years? If there is a child who is physically or mentally disabled, the benefit can be due while the disability continues, even if that is more than 25 years.

8.            What is the purpose of a “death prove-up” in an IL death claim? To insure the employer/insurance carrier is paying the right widow/widower, children or dependents. If you don’t do a prove-up, you might have to double-pay a later arriving claimant.

9.            If someone makes $200 a week and they suffer an accident today that results in total and permanent disability, what is their minimum weekly T&P rate? $535.79!!

10.         What is the minimum combined death benefit payable to a widow-widower who survives 25 years after their decedent? $535.79 times 52 weeks in a year times 25 years or $696,527.00!!

We are confident few defense lawyers know the answers to what we feel are simple and basic questions. We have several adjunct professors of workers comp law on staff to quickly answer your biggest concerns. We also have Shawn R. Biery and Matthew Ignoffo who are MSA-certified and know the law on Medicare Set-Asides backwards and forwards.

We confirm for all of our readers, if you are dealing with a  complex claims, such as the ones above or any other complex WC issue in Illinois, Indiana, Wisconsin, Iowa or Michigan, send us your concerns and we will typically respond with research and the answers you need. We don’t charge for such work unless and until you assign us the file.

Give us a try! We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: What Is Pittsburgh Biomechanics and Would They Help In Your Next WC or GL Defense?

Editor’s comment: Biomechanics is the application of the principles of engineering and laws of physics to the living systems, such as the human body. The human injuries provide a basis for a biomechanical reconstruction that along with the mechanical reconstruction allows the determination of probable accident scenarios.

Biomechanists determine the mechanism of the injury and the forces involved, and relate them to the tolerance data and everyday loads to verify whether a claimed injury is consistent with a specific set of actions or exposure to a specific accident environment.

Who/What Is Pittsburgh Biomechanics?

Pittsburgh Biomechanics is a [regional/national] consulting firm that provides its clients with the knowledge and expertise they need in cases involving human injury as a result of an incident/accident. They use engineering and biomedical sciences to explore the cause, nature, and severity of injuries. 

Their Role in WC and GL Claims Defense of Your Toughest Claims

They provide their clients with a biomechanical investigation, which includes the basic technical background that they need to consider when involved in accident-related cases, such as low-speed motor vehicle collisions, slip-and-falls, occupational injuries, etc. Their engineers help the clients, including attorneys practicing personal injury law, understand the role that a biomechanical analysis can play in a wide range of accident scenarios.

Top Ten Reasons to Consider/Use Pittsburgh Biomechanics?

1. Pittsburgh Biomechanics helped pioneer the science!
2. They’re equipped with tools like state of the art research equipment, proprietary software, 3D Analysis and visual communication that helps tell a powerful, potentially game changing story.
3. They have extraordinary experience of 77 years for all professionals combined
4. Pittsburgh Biomechanics includes a team of two MDs, eight PhDs, three Masters of Science and two RNs.
5. They produce remarkable results.  For example, they are 39-1 in trials using their expert testimony, and 95% of the 1100 cases they’ve analyzed have resulted in denials or compromise settlements that changed the face of those cases. 
6. They turn assignments as quickly as needed and can be available 24/7 for consultation. 
7. Their rates are extremely competitive
8. They are growing and adding new, Fortune 500 self-insured and insurance carrier clients.
9. Pittsburgh Biomechanics has the strongest possible client focus – they will understand client objectives and customize their approach to meet your needs
10. They possess the strongest possible credibility. Their reputation is their most valuable asset. 

Management by Top BioScientists

The company is run by Dr. Kevin Toosi, M.D., PhD. He is a faculty member at Department of Bioengineering at the University of Pittsburgh where he received his PhD in Biomechanics Track. He conducts clinical research to understand the mechanisms through which repetitive strain injuries of nerves and tendons occur and investigate the acute and chronic changes in the musculoskeletal systems by collecting and analyzing biomechanical data. His primary research interests include studying median nerve injuries, such as carpal tunnel syndrome, and investigating the relationship between those injuries and biomechanical factors affecting wrist structure and function.

As the Principal Scientist at Pittsburgh Biomechanics, he uses engineering and medical sciences to explore the cause, nature, and severity of accidental injuries. As a biomechanist, he determines the mechanism of the injury and the forces involved, and relate them to the tolerance data and everyday loads to verify whether a claimed injury is consistent with a specific set of actions or exposure to a specific accident environment. He has more than seventeen years of experience in the areas of clinical medicine, basic and clinical research, mechanics of soft tissues, human injury biomechanics, injury causation, and occupant kinematics in motor vehicle accidents.

To retain them as experts in your next claim, go to their website at http://www.pghbiomechanics.com/ or call 412-221-1671

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

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Synopsis: You Can Vote Today!!!

Editor’s comment: Voting is one of our most fundamental rights as Americans. It is the cornerstone of our democracy and our civic duty. Early voting is officially underway in Illinois. You can vote early using a mail-in ballot or at a local polling place.

Some people think their vote doesn’t matter. That’s just not true. Elections - especially those at the state and local levels - are often decided by just a few hundred votes. Your vote matters. 

Get out there and VOTE!!!

9-26-2016; Supreme Court Orders Millions in "Legal Fees" Due As Part of Subro Recovery; Law Limiting Civil Juries to Six Vacated; Ten Simple WC Questions to Ask Your Current Defense Lawyer

Synopsis: IL Supreme Court Holds an Employer Has to Pay Statutory 25% Legal Fee on Unpaid TTD/PPD and Medical Benefits Even When Injured Worker Recovers Millions in Third-Party Claim.

Editor’s comment: In Bayer v. Panduit, the Illinois Supreme Court considered a claim where the worker was severely injured. In his third-party action against the construction companies who caused the accident, he recovered an IL record $64M verdict for such injuries. At the time of the jury verdict, the gross work comp lien was about $5.2M. When/if that verdict would have been paid by Defendants, the employer would receive the $5.2M lien less a 25% statutory attorney fee owed to Claimant’s attorneys along with deduction of a pro rata share of court costs.

Moving forward, the employer wouldn’t owe any work comp benefits until the remaining “credit” or setoff of about $59M would be used up by Plaintiff. At that point, work comp benefits might have to be restarted.

In this ruling, the IL Supreme Court held an employer was relieved of their obligation to pay its employee’s future medical care as a result of the jury verdict in the lawsuit against third parties must include that reduction in calculating how much the employer owes in statutory attorney fees for the legal work of the employee’s attorneys. In this instance, the employer Area Erectors, Inc. began paying TTD and later total and permanent disability benefits to Plaintiff Bayer after he was rendered a quadriplegic in a workplace accident. Bayer also sought recovery from Panduit Corporation, for whom Area Erectors was building warehouse facilities at the time of the accident. Ultimately Plaintiff Bayer and his attorneys, one of the top Plaintiff firms in the U.S. obtained a judgment via an all-time IL record jury verdict of $64 million.

Section 5(b) of the Workers’ Compensation Act, 820 ILCS 305/5(b) (West 2006), protects an employer’s right to receive reimbursement for all compensation paid under the IL WC Act if the employee recovers from a third party legally responsible for the employee’s injuries. The employer’s obligation to make future payments is suspended until the employee’s recovery from the third party has been used up or “exhausted.” Section 5(b) also requires the employer to pay for the Plaintiff attorney’s legal work resulting in the recovery from which the employer is reimbursed. In the absence of an agreement stating otherwise, Bayer’s lawyers were entitled to 25% of the amount of TTD, then T&P benefits along with all medical bills Area Erectors would have had to pay. The plain language of Section 5(b) provides the employer’s reimbursement includes “amounts paid or to be paid pursuant to paragraph (a) of Section 8.”  In other words, the IL WC Act expressly contemplates that future medical payments are to be included in the amount to be reimbursed to the employer. The 25% collection fee to be paid to Plaintiff’s attorney is to be taken from the “gross amount of such reimbursement,” which is to include both past and future payments.

The Policy Underlying This Section of the IL WC Act is

·         The employer receives a benefit from the third-party judgment, in that the employer may no longer be required to pay future indemnity and medical benefits;

·         The employer has received this benefit as a result of the efforts of the plaintiff’s attorney;

·         Therefore, the employer should share in the obligation to pay the plaintiff’s attorney fees. To that point, it should be emphasized the attorney does not reap a double recovery. Rather, the fee paid by the employer operates as a credit towards the fee owed by plaintiff to his attorneys.

Our sources indicate the employer Area Erectors agreed to pay and was regularly paying 25% of what they would have owed for weekly TTD and then T&P benefits but for whatever reason, disputed the 25% owed on the medical bills. We consider that legal position to be arguably contradictory and it was even odder to see the position appealed at significant defense cost all the way to our highest court.

The dispute was whether Area Erectors had to include the reduction in future medical expense payments in the ongoing attorney fee calculation. Based on a plain language interpretation of Section 5(b), our highest Court concluded the employer would have to pay the statutory attorney fee on the value of medical expenses the employer was relieved from paying in the future by virtue of the recovery in the lawsuit. Citing decisions in Zuber and In re Estate of Dierkes, the unanimous Court explained Section 5(b) of the IL WC Act equitably permits the employer to come out even, places the ultimate loss on the wrongdoer, and allows the employee to recover more fully for actual damages than is possible under the IL WC Act alone.

We are also advised by sources these various third party claims are being settled and paid and there is a confidentiality agreement as part of the settlement so no further details can or will be forthcoming.

From our view, this outcome is an accurate statement of the law but also incongruous and unusual—in a situation where an injured worker is to receive an 8-figure jury award--$64,000,000 and basically be set for life with that much tax-free money, it is odd to imagine this IL employer has to keep paying possibly millions more in substantial “legal fees” calculated on both total and permanent disability and medical benefits that aren’t being paid. We caution our readers in the claims, broker and risk industry—if you don’t truly understand this outcome, don’t feel too bad. It is a very narrow set of facts that might lead to this outcome. Send a reply if you want more information or background on it.

So Every Time Claimant Bayer Gets Some Aspirin, Does His Former Employer Have to Give This Non-Lawyer 25% Of The Cost As “Legal Fees?”

There is a practical problem of calculating the amount owed on future medical bills. The practical difficulty of computing future bills, standing alone, does not form a basis for relieving the employer of its obligation to pay a portion of the fee to the attorneys whose efforts directly benefited the employer.

In this case, Claimant’s counsel now need to compile and present the medical expenses incurred by Claimant since 2013, when the employer ceased paying attorney’s fees on the medical bills. Claimant Bayer may be entitled to receive “attorney’s fees” in the amount of 25% of those bills. We assume the WC carrier may contend its liability would be limited to 25% of its negotiated rate with the providers, or in the absence of a negotiated rate, then the lesser of the actual charges or the IL WC Medical Fee Schedule amount. We do see the potential for Section 8A Petitions to be filed to battle over such costs.

We are finally advised the IL WC case technically remains open. The prior Section 5(b) lien has been paid, subject to the 25% collection fee and the employer’s pro rata share of litigation costs. Benefits have been suspended due to the third-party recovery, but the WC carrier continues to pay 25% of the amount owed for PTD each week. We are told that money is being remitted directly to Claimant Bayer. We will let the accountants among our readers decide whether such payments of what are supposed to be “attorney’s fees” comprise a gift from his law firm to Plaintiff who isn’t an attorney.

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

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Synopsis: IL Supreme Court Knocks Out IL Law Allowing for Six-Person Juries.

Editor’s comment: Starting on June 1, 2015, all civil cases in Illinois were to be tried by a jury of six, halving the longstanding tradition of deciding civil lawsuits with a twelve-person jury. Criminal trials were still to be decided by a jury of twelve.

Senate Bill 307 (SB 307), later Public Act 98-1132 cut the number of jurors in all civil cases from twelve to six and increased the minimum payment for jury service to $25 for the first day and $50 for each subsequent day. Reaction to the new law was mixed, with approval split along party lines–and between the plaintiff and defense bar. The new law was widely supported by the Illinois Association of Trial Lawyers who claim the change will result in reduced costs and time savings to litigants and increased courtroom efficiency, all while encouraging jury service by increasing jury pay. Critics argued the perceived benefits were minimal – particularly in light of the trade off in halving the numbers in a civil defendant’s “jury of their peers.” However, the six-person rule was not unprecedented, with federal courts and many states employing six-person juries in civil matters.

As a populist measure, most agree the $17.20 paycheck Cook County jurors (jurors in other counties receive even less) receive for each day of service does little to offset the lost time and inconvenience of appearing for jury duty. But the question remains was the new provision of $25 per day for the first day and $50 per day if selected to sit on the jury really a fair measure of jurors’ time and service? Probably not. The pay raise was definitely an improvement, but the people who complain that they cannot afford the lost time of jury service were not likely to be swayed by the small increase.

Critics of the change also questioned whether the new law saved court time and costs. Criminal trials are still tried by a jury of twelve. By the time a significant civil case reached trial, the court time saved in selecting six jurors instead of twelve is unlikely to be significant to most litigants, particularly defendants who are losing the opportunity to present their case to an additional six people. Others claim the new law resulted in a lack of diversity of backgrounds and viewpoints on the jury. Conventional wisdom suggests larger juries tend to moderate the size of jury awards. A smaller jury is more likely to be dominated by a strong personality, whereas there is more room for debate in a larger group where it is less likely that a single juror or small faction will control the discussion. Across the board, it is easier for a plaintiff to convince a jury of six than a jury of twelve.

Now, in Kakos v. Butler, our highest court unanimously affirmed Judge Gomolinski’s judgment in the Circuit Court confirming the 6-person jury limit established by Public Act 98-1132 is facially unconstitutional. Supreme Court Chief Justice Rita Garman wrote for the Supreme Court.

The law eliminated the right of either litigant to request a jury of 12 members and provided instead “all jury cases shall be tried by a jury of 6.” The Act also established a uniform rate of pay for jury service at $25 for the first day and $50 per day thereafter. Because the Circuit Court judge found the Act to be unconstitutional, Plaintiffs were able to avoid the Appellate Court level and took a direct appeal to the Supreme Court as a matter of right pursuant to Supreme Court Rule 302(a).

The Supreme Court first explained it applied a limited lockstep approach when interpreting cognate provisions of the state and federal constitutions. Caution was appropriately taken because the Supreme Court of the United States held the amendments contained in the Bill of Rights do not require 12-person juries. The IL Supreme Court found the distinction the Illinois Constitution revealed an intent on the part of the drafters to maintain common-law characteristics of jury trials. Accordingly, a different construction of the Illinois Constitution, as opposed to the rights protected by the U.S. Constitution, is appropriate.

The Court then noted a long history in Illinois describing juries of consisting of 12 men. The Court ruling took note of the respective arguments of both Plaintiffs and Defendants as to whether the size of a jury affects the performance of juries, commenting both positions have some merit.  However, “our task is limited to determining whether the challenged legislation is constitutional, and not whether it is wise.” The Court found ample evidence the drafters of the 1970 Constitutional Convention believed they were specifically preserving the right to a 12-person jury. A proposal to the contrary was not adopted by the Convention.

The Court distinguished its opinion in 1939 which held women, as opposed to just men, could serve on juries. Among other distinctions, the Court stated the sex of a juror is a matter of juror qualification, and not an essential element of the right of trial by jury. The court concluded the 12-person size of a jury was an essential element of the right of trial by jury enjoyed at the time the 1970 IL Constitution was drafted,  the right was protected in the Constitution, and therefore the Act was unconstitutional.

The Court further ruled the companion provision for increasing the pay of jurors was not severable from the unconstitutional portion of the Act, and therefore it was found to be invalid as well. It was clear to the Court the legislation was intended to make jury trials more efficient and to encourage citizens to participate in jury duty. If the increased pay scale alone survived, the cost of jury trials throughout the state would dramatically increase.

Like the issue of fake government pensions that our state can’t afford, a concept like this has to be brought up in a “Con-Con” or constitutional convention. Our problem with suggesting such a convention be conducted in this state is IL House Speaker Michael Madigan and Chicago Finance Chairman Ed Burke are still in dominant power so any actions to make significant and cost-saving reforms might be impossible.

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

9-19-2016; Wilmette Firm Gets IL WC E-Filing—Will Gov't Efficiency Result in Savings?; Managers, Assume You Are Taped!!, Analysis by Brad Smith; Email Attachment Standard to Boost WC Payment Speed

Synopsis: Wilmette Firm Gets IL WC E-Filing Job—Will Government Efficiency Result in Savings for IL Taxpayers?

Editor's comment: Reliable sources advise WorkComp Strategies of Illinois won the bidding to be the E-Filing Vendor for the IL WC Commission. Their website is http://www.stratag.net/home. IL Secretary of State Jesse White's website indicates this limited liability corporation is based in Wilmette, IL.

One of the two partners is the former program director of Virginia's WC system and this new firm to be the vendor for the first phase of an e-filing program called the digital transformation project. WorkComp Strategies of Illinois, an offshoot of his WorkComp Strategies LLC, will get nearly $807,000 with an option for $574,000 in contract renewals, according to the bid notice. The company appears to be on the cutting edge of e-filing for other states, as they also have a contract with the Kansas Division of Workers' Compensation to shepherd its DigiComp electronic filing system, which is still in the works.

WorkComp Strategies has three employees and their team will determine the steps needed to ascertain needed requirements for the IL WC e-filing system, and then will develop the RFP or request for proposal for the second phase — the development and implementation of the computer systems. Based on how the bidding was set up, WorkComp Strategies of Illinois is not eligible to bid or directly participate in providing services in the second phase. All monies to fund the IL WC e-filing project will come in part from a $44 million settlement obtained through the hard work of Jay Dee Shattuck and others at the Illinois Chamber of Commerce, which filed a lawsuit against inappropriate business fees imposed by former-Gov-now-in-prison Blagojevich's administration.

The Cook County Circuit Court ruled in favor of the State Chamber's lawsuit and confirmed the new business fees violated uniform taxation rules by creating classifications that singled out business groups to bear the cost of operating general government functions. The IL Supreme Court sent the case back to the Circuit Court for more fact-finding, however. At that point, the State agreed to settle for $44M. Part of the $44 million settlement was used to repay loans used to provide Rate Adjustment Fund cost-of-living increases to permanently injured workers and to pay claims owed to others. The bulk of the settlement or $26 million, which is now $30 million was designated for IL WC Commission capital improvements, in particular this new e-filing system. None of the settlement money was designated to cover normal IL WC Commission operating expenses.

The Illinois Chamber, a staunch supporter of e-filing and lots of other things that are good for IL workers' compensation, was the only agency to comment on the proposed e-filing system after WCC rule changes were published July 29 in the Illinois Register. Proposed Section 10B under 50 Ill. Admin. Code 9015, however, could be interpreted to allow only attorneys to use the e-filing system. Every indication is pro se litigants and non-attorney clerks will be given entry to the system.

The digital transformation project will involve several core components, including electronic filing of applications and motions, case management, dispute resolution and workflows, electronic imaging and document management, data interchange, docketing, scheduling, calendaring and reporting, the agency said in its RFP. Other related business functions also will be included, including self-insurance and insurance compliance.

Will IL WC Commission E-Filing Result in Real Savings?

From the Good Gov't folks at KCB&A, we will continue to ask the recurrent question—will this new e-filing effort result in demonstrable savings for IL taxpayers. We point out 100% of the cost of operating the IL WC Commission is levied on business and local governments. There are numerous "special funds" that your editor considers ridiculous and should be ended when and if someone cares about saving IL business money. All IWCC budgets and funds should come under repeat scrutiny to insure IL business and local governments are getting solid value for the money they are spending on the IWCC.

We remember the silliness that happened when TriStar was brought in to "replace" the Central Management Service's WC claims adjusters. Insiders were told the CMS adjusters would either become part of the TriStar claims team or they would be shown the door to save taxpayers money. Instead, we were advised what happened is the cost of the TriStar TPA was added to the WC budget and the various line adjusters with CMS turned into "supervisors" of the outside adjusters. Not a nickel was saved. We vote Governor Rauner take a hard look at the TriStar program and issue an RFP for one of our many in-state WC TPAs, like Cannon Cochran Management Services, IPMG, Gallagher Bassett or many others to openly bid on this needed government service and save money on State WC claims.

We will continue to watch and see what happens with e-filing. If the new computer models result in faster and smoother electronic handling of the claims of injured workers, we assume the money obtained by the IL State Chamber will be put to good use. If it also results in savings for IL State Chamber members and others in IL business and local government, we will strongly salute these efforts. Watch this space for results as we learn of them.

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

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Synopsis: Managers, Please Start To Assume You Are Being Taped--Employees Now Secretly Recording Employers: Who Would Consent to That? Carlson Wins $20 Million Settlement Against 21st Century Fox. Analysis by Bradley J. Smith, J.D.

Editor's Comment: Everyone has likely heard of the suit against Fox News brought by former news anchor, Gretchen Carlson. Carlson alleged the network's CEO and President, Roger Ailes, subjected her to harassing comments. Carlson's key pieces of evidence consisted of voice recordings of Ailes making sexually harassing comments. That evidence was taken on Carlson's iPhone for more than a year prior to her exit from Fox News. Ultimately, Carlson's case was in its infancy, but Fox News was more than willing to offer up the substantial sum of $20 million to escape the publicity and negative press that followed the suit. The recordings also cemented Carlson's claims of a hostile work environment at Fox News. Nonetheless, Carlson's workplace was in a state where only one-party consent to recording is required under the applicable eavesdropping laws, similar to Federal eavesdropping laws.

Perhaps a sign of the times, this type of behavior is occurring more and more today. In fact, Carlson's actions are likely to be copied by other employees in similar circumstances. Illinois is not one of those states currently, but employers must remain vigilant to prevent a workplace where every conversation is recorded.

Notably, your place of employment determines if actions like Carlson's are legal. If those actions are not legal, then generally the evidence derived from that illegal act would be subject to exclusion from any finder of fact and could subject the individual recording the conversation to civil and criminal penalties depending on the jurisdiction. In Illinois, all-party consent is required. However, in neighboring Indiana and Wisconsin, only one-party consent is required. All-party consent is required in only 11 states in addition to Illinois: California, Connecticut, Florida, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. A majority of jurisdictions only require one-party consent to record conversations.

As hostile work environment cases generally come down to allegations someone was saying something derogatory or inappropriate, recordings—if legal—are invaluable. This evidence would be extremely beneficial even to employers' managers that fear false allegations of creating a hostile work environment or harassing someone will be lodged against them. Even recording someone in a termination meeting might alleviate the necessity of a witness to sit in on the meeting. However, a precedent of recording can be dangerous. Not only can it subject individuals to severe invasions of privacy. It will be embedded with baiting of individuals. Furthermore, recordings could be taken out of context in an effort to seek out bad publicity against employers.

In Illinois, the requirement of all party consent is an interesting legislative topic fraught with legal implementation challenges. The Illinois Supreme Court struck down the original eavesdropping statute (720 ILCS 5/14-2) in March 2014. In People v. Melongo, 2014 IL 114852 and People v. Clark, 2014 IL 115776, the law was found unconstitutional. Both cases were heard at the same time and both opinions were filed on the very same day. They both held that the Illinois eavesdropping statute as amended in 1994 was unconstitutional, as it was overly broad under the first amendment, in criminalizing the recording of conversations without the consent of all parties, even if they have no expectation of privacy. For example, the original Illinois eavesdropping statute prohibited recording:

1)   A loud argument on the street;

2)   A political debate in a park;

3)   The public interactions of police officers with citizens; and

4)   Any other conversation loud enough to be overheard by others whether in a private or public setting.

In fact, recording of these public conversations were deemed a felony under criminal law. More recently, Public Act 98-1142 amended the statute. Public Act 99-352 again amended the statute in 2015. The amended Illinois eavesdropping statute seeks to follow the Illinois Supreme Court's holdings that struck it down in attempt to make conversations with no expectation of privacy available for recording without repercussions. In other words, public conversations have no expectation of privacy. However, the Illinois eavesdropping statute requires all-party consent—similar to the original statute—for any applicable private conversations.    

Employers will need to implement policies prohibiting workplace recording in Illinois under certain circumstances to avoid any situations where employees are recording conversations meant to be private. Recording conversations at work can only open up a Pandora's box despite the anticipatory use by employers to avoid discrimination claims. One can also see where a determination by an employer to use a recording device in performance and termination meetings would cause the employees to use recordings in everyday disciplinary situations out on the open floor at an employer's place of business. Perhaps an employee would argue—without an applicable restrictive policy in place—that the conversation was recorded and there was no expectation of privacy. Consequently, although at first glance recording workplace conversations with everyone's consent seems like a great way to protect employers, implementing policies preventing any workplace recordings appears to be the better option in the long run.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the employment law and general liability defense at bsmith@keefe-law.com.

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Synopsis: National Attachment Standard Could Give WC Electronic Medical Billing PAYMENT SPEED a Boost. We recommend all of the doctors, hospitals and healthcare providers among our readers to consider a change.

Editor's comment: One key to ensuring quick payment of work-related medical bills for injured workers is to electronically submit the attachments unique to the work comp industry. Submitting electronic attachments could become easier following a public advisory board's proposal to standardize this important process. The National Committee on Vital and Health Statistics transmitted the recommendations to U.S. Health and Human Services Secretary Sylvia Burwell earlier this summer. The recommendations could be followed by rule-making on all electronic attachments.

In workers' compensation, the attachments are typically physician notes about an injured worker's recent visit. Unlike group health, workers' comp payers often want to see the physician notes at the same time as the bill. Several states require submission of the physician notes with billing. We feel this concept should be brought to IL WC also.

Concentra has a system to electronically submit bills for workers' compensation services and the attachments at the same time, something the company has been doing since 1998. When they do so, they see much more rapid payment times. But many medical or PT practices aren't following this simple model. Those using a medical billing clearinghouse might submit the bill electronically and then, in an added step, fax the attachment to the clearinghouse, which later matches up the items to send to the payer. Others send paper bills to the payer, where the attachment can easily get separated from the bill.

The problem is that many practice management systems don$B!G(Bt include a way to pair the attachment with the medical bill. That could change if HHS adopts standards for electronic attachments. In a recent white paper on "how to be successful" in the electronic submission of workers' compensation bills, the California Orthopaedic Association lists some of the reasons providers are not yet using electronic billing. California is one of several states that requires workers' comp payers to accept electronic billing, but it is optional for providers. Some orthopedic practice managers told COA they hadn't had a chance to update their electronic billing systems to accommodate workers' comp billing in addition to Medicare and group health. Others said they weren't sure their practice management system could handle electronic workers' compensation billing, or said that their system could bill but wasn't able to send attachments, according to the white paper. Many confirmed electronic billing was too costly to implement, or that their office doesn't have an electronic medical records system. We feel these are the same practices that constantly complain about slow payment in the WC industry.

COA recommended using a clearinghouse as an easy way to submit medical bills, reports and attachments electronically. Alternatively, a practice might need to have custom interfaces written for its practice management system to generate the files in the correct format and to match up billing with attachments. In addition to streamlining the billing process, COA notes a big advantage of electronic billing: getting paid more quickly. "Orthopaedic practices that have moved to the electronic submission of workers" compensation bills/reports/attachments indicate they are commonly getting paid in 10 days or less with fewer bill rejections," the COA report noted.

Texas adopted electronic billing and attachment regulations in 2008, based on standards from the International Association of Industrial Accident Boards and Commissions, or IAIABC. Those were based in part on a federal regulation proposed in 2005 that was never adopted. The Texas system includes an electronic "envelope" for including attachments as well as a transaction to acknowledge receipt of an attachment.

We asked Dr. David Fletcher, the CEO of SafeWorks Illinois about this topic and got this answer from his top staffer Tonya Trice: "We are very lucky. We use Jopari, which will not even submit one of our invoices without an attachment. If for some reason an attachment is not uploaded with our invoice, it takes me a matter of seconds to upload that attachment and continue on with the billing process. I cannot imagine using an electronic system in which we would have to fax or mail in our attachments. I didn't even know some places are billing this way. That is not efficient what so ever. As I have told you before, I wish all of our bills could be submitted electronically. Jopari is adding new payers, and maybe in time it will be that way." For information on Jopari, go to their website at: http://www.jopari.com/. For information about SafeWorks Illinois, go to their website at: http://www.safeworksillinois.com/

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