5-18-2020; IL State Financial Crisis Brewing--When Will IL WC Commission Go Back to 'Virtual' Work?; IL State Chamber Asks Our Legislature to “Do No More Harm!!!” and more

Synopsis: State of IL Financial Crisis Brewing; When Will the IL WC Commission Go Back to “Virtual” Work?

The State of Illinois is going to be reaching a crisis in funding State government agencies, payrolls and expenses very soon, if not already. We assure you it isn’t a question of if there will be an IL State funding crisis—it is just a matter of how big and when that crisis will land.

During this crisis, IL State Tax collections across the board are certain to dramatically suffer, creating a gaping hole that won’t be easily filled in this State with the worst credit rating in U.S. history. There is a hope by Illinois and similar states that the Feds will generously offer a massive bailout. The problem is, other States with their fiscal house in order don’t want to flip the trillion dollar bill, and we can’t blame them. As some of the lawyers at KB&A are life-long Illinois residents, would we like our State totally bailed out from the debt/pension crisis? Well, sort of, yes. Is it fair to put decades of poor financial practices on the back of the rest of America? Of course not.

So, what do you want the State to do?

While the private sector is either forcibly closed or doing all they can to cut cost and survive, it seems very little is being done to shut down costs/expenses in any IL State department that anyone has heard of. Other States, counties and cities like Rock Island, IL are laying off non-essential workers, to our understanding. We don’t understand why our IL State and local governments aren’t running “skeleton crews,” maximizing online capabilities or shutting down like the private sector to save millions. After all, many of the respective government workers have very little to do during the shut-down.

The IL State department we are most familiar with is the IL WC Commission that may be innocently contributing to this situation. The annual cost/budget of the IWCC is $30M or more than $2M a month. The IL WC Commission is significantly shuttered without any layoffs that anyone is aware of. Other than limited emergency hearings, some telephone oral arguments, and telephonic status calls, there are not significant litigation efforts going forward and filings for Request for Hearings are significantly lower. Case filing has slowed significantly as well. There is no question they are almost certainly seeing less work during the entire month of May.

June, July, August—who knows when the regular functions of staff at all levels at the IWCC will come in full swing? The idea of a “shut down” but with full time/full employment of all state workers is troubling some observers.

Our Humble Suggestion:

The defense team for KCB&A doesn’t want layoffs at the Commission. To the contrary, we would like to see the Arbitrators and Commissions “virtually” return to their regular jobs and again start moving claims forward. This will require adjustments, of course. It is what private business does when blind-sided by unexpected challenges. For example, the Starbuck’s on our corner does not allow anyone inside and will not exchange money at all, for our afternoon coffee run. However, they have advertised and set up remote ordering and we are met at the door each afternoon with our coffee placed on an outside table for pick-up. That is how private business adjusts to this unprecedented crisis, and the IL WC Commission can do the same.

To be sure, the Chairman and Commissioners have already taken steps to function on a limited basis during this crisis and we applaud those efforts to have emergency hearings, keep pro-se approvals going and get settlement contracts approved. We can schedule emergency hearings and are also moving toward limited/agreed hearings next month as well. Let’s not stop there. We further advocate pre-trials and motions via conference call or Zoom, allowing preliminary work to be done in advance of trial. Pretrial discussion and recommendations are a great method to resolve disputes short of formal trial. Electronic filing and e-exchange of exhibits prior to trial can limit contact at hearings and the now well-established precautions for distancing can be taken to minimize contact risk for court appearances.

There are also nine IL WC Commissioners who handle administrative appeals in three panels of three. Each of them have two attorney-assistants. Let’s keep them working with conference call or Zoom oral arguments and motions. You may note the U.S. Supreme Court is holding online orals—why can’t every judicial and administrative hearing start again happening/working but online?

In our view, no attorney on either side with a valid and important IL WC administrative appeal is going to waive oral argument. At present, we understand there have been at least a few oral arguments via phone conference (Shawn Biery from our office argued and already received a Commission ruling during the shutdown). We have multiple pending appeals and encourage the continued setting of oral arguments in as many cases as possible. This provides the 27 lawyers who are either Commissioners or assistants to the Commissioners with an ability to work through any backlog and get cases decided.

As indicated above, all of this could be done online with Zoom meetings, phone conferences, FaceTime or some other electronic means. As we indicate above, we understand the U.S. and IL Supreme Court are using such technology to keep their docket moving. We should do the same at the IWCC, not just to justify the Commission payroll, but to also preserve the rights and interests of employees and employers in our industry.

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

Synopsis: KCB&A Joins With the IL State Chamber to Beseech Our Legislature to “Do No More Harm!!!”

Editor’s comment: The Illinois State Chamber confirmed our IL Legislature is returning to consider new laws in light of the current crisis. The State Chamber’s top legislative gurus have one message to returning lawmakers "DO NO MORE HARM!" We join with them and our readers to question/challenge our IL General Assembly's enactment of new mandates, new opportunities to sue employers, and new taxes on employers so as to add open and hidden costs that bring many IL businesses closer to shutting their doors and eliminating the jobs that result from the closure of that business.

Two issues our IL State Chamber feels will be considered during next week's IL Special Session are unemployment insurance and workers' compensation.

1. Unemployment Insurance: Three issues that need to be addressed to secure much needed federal funds for administration of the unemployment system by the Illinois Department of Employment Security are:

1) waiver of the benefit charges for individual employers due to COVID-19;

2) waiver of the one week waiting period for benefits to start; and

3) addition of 13 weeks of benefits past the 26 weeks of regular benefits.

1. Workers' Compensation: With the judicial victory and subsequent repeal of the Workers' Compensation Commission's emergency rule to broaden the rebuttable presumption for COVID-19, we expect the General Assembly will push for enactment of similar provisions in the statute. Preparing for a potential legislative solution, the State Chamber’s Employment Council staff with assistance from members of its Workers' Compensation Committee has prepared a legislative compromise to be introduced by Sen. John Curran (R- Willowbrook). We salute them for their hard work in trying to stay on the point with legislators.

The State Chamber’s proposed legislative compromise seeks several changes to the current law.

• Expands the current workers covered by the rebuttable presumption by:

  • Removing the five year requirement for firefighters, emergency medical technicians (EMT), emergency medical technicians-intermediate (EMT-I), advanced emergency medical technicians (A-EMT), and paramedics;

  • Adding law enforcement officers; and

  • Adding health care providers, nurses, or assistive employees employed in a health care, home care, or long-term care setting with direct COVID-19 patient care.

• Requires the employee to show contraction of COVID-19 by either a confirmed positive laboratory test or, if a test was not available, by the employee's physician's documented diagnosis based on the employee' symptoms.

• An employer is able to defeat the presumption if :

  • the employer provides evidence to support a possible finding that the employee's occupation was not a cause of the disease; or

  • if the employer shows that the employee's worksite followed the appropriate Centers for Disease Control (CDC) interim COVID-19 Guidance for Businesses and Employers and any updated changes to such guidance.

• Specifically provides an employee who has contracted COVID-19 but who fails to establish the rebuttable presumption is not precluded from claiming an injury.

• Provides the date of injury/exposure is the date that the employee was unable to work due to a diagnosis of COVID-19, or due to symptoms that were later diagnosed as COVID-19, whichever occurred first.

• Provides an employer shall be able to offset liability for temporary total disability (TTD) benefits for payments to the injured employee for:

1. paid leave due to COVID-19;

2. sick leave benefits or family medical leave benefits paid under the federal Families First Coronavirus Response Act; and

3. unemployment insurance benefits paid pursuant to the federal Families First Coronavirus Response Act.

• Requires the IL WC Commission to provide a detailed report on COVID-19 workers' compensation and occupational diseases claims to the Governor, members of the General Assembly and the Workers' Compensation Advisory Board by January 15, 2021.

• Provides for an effective date for the rebuttable presumption for employees who contracted COVID-19 on or after March 9, 2019 and until 30 days after the Governor's COVID-19 State of Emergency expires.

We ask our readers to consider joining the IL State Chamber, as they are the lead organization watching out for the needs of IL business. For more information, go to www.ilchamber.org.

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

Synopsis: When Will the Media Start to Actually Help Avoid/End Covid-19 Exposures?

Editor’s comment: Common sense thoughts from your Editor, Gene Keefe.

I am carefully watching the news approach on reporting of Covid-19. I consider it mildly hogwash and will explain why. They track the total number of infections, the number of deaths and the number of new cases. In my view, that simple and summary information isn’t helping and the media should start to focusing on helping folks avoid infections.

We all know about masks and gloves. Despite that common skill set, please note we had around 1500 to 4000 new cases a day this past week in Illinois. To me that is a staggering number given what we know about this bug and how to stop it. The only way to get infected that I am aware of is human contact. Right?

In contrast, Florida has around 30% or significantly less than our new cases with about 8 million more people in that State than Illinois—what are they doing that we aren’t???

And why isn’t someone trying to reach out to new Illinois cases and ask them for their spin on how they may have gotten the infection?

Please note the CDC website is the normal federal blur---I am not sure what they are doing and why/how. I don’t feel they are strongly effective based on current performance. Take a look at: https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html

If most infected people are asked, I am sure a number of people wouldn’t participate and you can’t force anyone to violate their federal HIPAA privacy rights.

But there is no harm in having the news media asking and reporting when infected people cooperate and give you their best thoughts on how they got this awful bug.

I am asking my readers who are willing to cooperate to let me know what the reported source of the infection is for your Covid-19 WC/OD claims. I don’t want the workers’ names and I won’t publish your name, unless you want me to. Also, feel free to confirm all your Covid-19 avoidance efforts so I can relay to the secret-powers-that-be who run the IWCC.

My focus is to use and publish data to start making sense of why 1,500-4,000 Illinoisans are getting newly infected each day in this about-90-day-old crisis and, along with distancing, masks and shields and other stuff, let’s tell people what to avoid.

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

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

5-12-2020; A “How To” on Defending Work Injuries for Employees Who Will Continue to Work From Home; New Proposed IL legislation to Deal with the Covid-19 Crisis and more

Synopsis: Managing a New WC/OD World After Covid-19 Passes—A “How To” on Defending Work Injuries/Exposures for Employees Who Will Continue to Work From Home.

Editor’s comment: I feel confident Covid-19 is cresting and going back down to the point it will soon disappear from our lives. Yes, some of that sentiment may be “hopeful thinking” by me. What I do feel we are going to experience is lots of workers are going to try to remain at and work from home. I assure my readers if your account/company has folks working from home, they can and will receive WC/OD benefits for work-related injuries and exposures. In short, these benefits don’t end when the worker works from home.

This new “at home” job setting will create WC challenges for risk and claims managers across the country and the globe. When employees work remotely from home or other locations, the normal WC rules of In The Course of and Arising Out Of or ICO/AOO become complicated and challenging.

The same is true of WC/OD subrogation potential. When an employee is injured in or around their home while working, subrogation targets might be challenging. Cybersecurity can also be greatly compromised when an employee utilizes an unsecured or public Wi-Fi source and works from home using an unsecure personal laptop, notebook, cell phone, or other electronic device.

In the wake of the global pandemic involving the COVID-19 coronavirus, employees across the globe are being told to work from home or given that option. I think lots of workers are going to want to remain at home for months or maybe for all the future time they will be working. Claims handlers and subrogation professionals should be aware of the many legal nuances that arise when employees work from their couch or the local coffee shop.

The cost savings of having employees work from home, combined with convenience for workers, has made “work from home” a growing phenomenon. Rest assured, injuries/exposures occur at and around home just like they do in the workplace. As a general rule, if an employee deviates from performing their job for a personal benefit and is not furthering the business of the employer, then any injury that occurs during the period of deviation is usually not considered within the course and scope of employment and, therefore, is not covered. Once the employee returns to the home work site or returns from the deviation to the course of employment, then any work-related injury/exposure that occurs after that point is covered. This line is fairly bright when you have employees leaving their home desk/office and travelling to and from lunch.

Crucial to Managing an “At Home” Work Accident or Exposure—Seek Rapid Reporting and Thorough Incident Investigation

What you can immediately tell for all claims and risk managers trying to deal with “at home” injuries—you have a major accident investigation issue. It is crucial to do two things:

1. Confirm for all your workers they need to report any work-related incident or exposure at the earliest opportunity—Send the message that coverage may be blocked or unnecessarily delayed due to late reporting;

2. And then document, document, document what the worker did prior to, at the time of and after the incident. Do a full incident investigation protocol—consider visiting the worker at the earliest opportunity to get the scoop on what happened, where and why it occurred.

 You should have something of an advantage over the workers when you diligently investigate any asserted work-related incident—you know what you are looking for and you have to hope the employee is going to tell you the truth, the whole truth and nothing but the truth.

Please remember “horseplay” is usually not a WC-covered activity in most states. If the employee is feeding their cats or emptying a litter box while at home and falls down, I don’t feel that should be WC-covered. When the instrumentality of the injury is solely within the province of the employee and the employee can say just about anything regarding what caused the injury and when it occurred, employees injured while working at home must be handled differently for purposes of both the initial claims handling and subrogation. Diligent questions must be asked, and different standards must be adhered to.

WC/OD Claims concerns involving remote employees is not limited to worldwide pandemics. According to a report published in 2010, nearly 24% of American workers reported routinely doing some or all of their work from home. A recent study revealed that more than 60% of the world’s work force works at least one day a week remotely and that almost 50% of all employees work half the week outside of the office.

Employers who are concerned with workplace safety have little or no control over the employee’s home office environment. The challenges are not the employers’ alone, either. Employees also have increased challenges and risks when working from home. It is much more difficult to prove an injury was work-related because there is usually less evidence available in these home office scenarios. An accident at a business or job site may have witnesses or be caught on security footage. Work at home employees are often all by themselves while they work, so there is often no one present to corroborate a sudden injury or accident or to help determine the precise conditions of the injury.

Another challenging WC/OD claim issue arises with regard to the “Coming and Going Rule.” Although the rule varies from State to State, it generally provides that if an employee is injured on their commute to or from work (in other words, “coming and going”) this is not considered within the course of their employment and would, therefore, not be covered. There are exceptions to this rule.

·        Employee’s employment contract includes transportation to and from work;

·        Employee has no fixed place of work;

·        Employee is on a special mission for employer; or

·        Circumstances are such that the employee was furthering the business of the employer.

WC Subro Challenges

When employees are injured while working at home, subrogation can be challenging. If the work at home injury is caused by a dangerous condition due to the employee’s roommate or the employee’s landlord, new questions of third-party liability must be examined. Contact Brad Smith who heads KCB&A’s subro team at bsmith@keefe-law.com or just send me a reply to consult in such situations, because the First Report of Injury and the first communications with the employee suddenly become subrogation-related—something most claims and risk professionals are not accustomed to.

Summary

I promise my readers we are soon to see lots of “at home” injuries and claims. You need to start letting all workers know to report any injury/exposure at the earliest opportunity and you then have to do a full incident analysis to determine compensability and possibly start reserving and paying medical bills and lost time.

If you have questions or concerns about how to best defense at home WC/OD claims, send me a reply.

Synopsis: New and Alarming IL legislation from the IL General Assembly to deal with the COVID-19 pandemic. 

Editor’s comment: We first saw this proposed legislation on the IL State Chamber’s weekly update. We join in the State Chamber's opposition to this bill. Please note there is no stopping the Democrat “super-majorities” in the IL House and Senate—the only thing that can “slow” legislation in this one-party state is the media and an uprising from voters to your representatives. I recommend all my readers from the defense side of the WC/OD matrix consider joining the IL State Chamber, as they “have your back” on all issues of importance to you and your business. For more information, take a look at their website at www.ilchamber.org.

HB 5769, sponsored by Rep. Andre Thapedi (D-Chicago) would create the Personal Protective Equipment Responsibility Act (or PPERA) requiring an IL employer designated as an “essential employer” under a disaster proclamation issued pursuant to the Illinois Emergency Management Act or an executive order issued pursuant to the disaster proclamation to provide personal protective equipment to independent contractors and to all employees during the duration of the disaster proclamation or executive order. It also creates a new common law cause of action allowing the recovery of damages, including punitive damages, and attorney's fees. In my view, this is “business-busting” litigation that would crush mid-sized and small businesses under new exposures and claim costs.

First, the legislation seeks to bypass the workers' compensation system and our "exclusive remedy" doctrine. The “exclusive remedy” doctrine bars employees injured on the job from making a tort liability claim against their employer. The rapid and certain benefits provided under workers' compensation or occdisease are the sole remedy available to an injured or ill employee.

The IL Workers' Compensation and Occupational Disease Acts and case law provides that if an employee contracts a disease that is caused by the workplace, such as COVID-19, defined benefits are paid to the employee and the employer is protected from having to defend expensive and protracted litigation along with devastating  legal issues like punitive damages.

Second, the PPERA provides a cause of action for independent contractors which under the law are not employees. We consider it very odd to start supervising the relationship between companies that hire independent contractors.

I join with the IL State Chamber to confirm this is a very flawed bill that could seriously harm IL employers at a time when they are struggling to remain viable and need the most help and will actively be opposing this legislation. Please watch this space for news as this legislation proceeds.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

5-4-2020; Legal Efforts Continue with News on Depositions and IWCC Developments by Shawn Biery; John Karis Reports on False Identity Claim and Consideration of Evidence After Record Closed and more

Synopsis: Legal Efforts Continue In This Ever Changing World. News on Depositions and IWCC Developments, As Well As May 2020 Telephonic Status Calls. Thoughts and comments by Shawn R. Biery, J.D., MSSC.

Editor’s comments: The Covid-19 Litigation Impact Continues; However WC and Other Claims Litigation Marches On.

In one of the more recent Memorandums from the IWCC Chairman, the Illinois Workers’ Compensation Commission indicated they are suspending regular operations during the month of May 2020. In light of the withdrawal of the previously promulgated amendment generally known as the “Rebuttable Presumption” rule, another  IL WC Committee  will  be  formed  to  examine other possible actions that the IL WC Commission may take, in light of the Covid-19 Pandemic and its impact upon the actions of this Commission under the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act.

A Special Circumstance Arbitration Procedure has also been posted on the IWCC website. In that regard, all status calls will take place by phone and certain cases will be allowed to be set for in person hearings in June 2020. The IL WC Commission will continue cases to their next regularly scheduled 90-day continuance date, unless a hearing date has been set pursuant to the Special Circumstance Arbitration Procedure. Our KCB&A office has participated in the initial telephonic status and it was relatively well managed and productive. We continue to seek appropriate hearings to continue to attempt to resolve matters via all avenues available.

The  IL WC Commission  will also  continue  to  conduct  previously  set  Emergency  Motion  Calls  for  EMERGENCY motions, ONLY. An “Emergency Arbitrator” will be available at the locations and on the dates and times set via published schedule  (updated  on  a  weekly  basis)  for  presentation  of  “valid”  emergency motions only.  “Valid” emergencies include issues involving the expiration of a statute of limitations, a party can reasonably be expected to suffer an unacceptable hardship, if not heard on  an  expedited  basis. Motions  which  do  not  constitute  “valid”  emergencies  will  be  stricken. 

Emergency Motion Calls will generally run from 9:00 AM to 12:00 Noon at the below locations:

• Chicago cases will be heard at the IWCC’s Chicago Office:  Monday, Wednesday and Friday

• Zone 1 cases will be heard at the IWCC’s Collinsville Office:  Tuesday and Thursday

• Zone 2 cases will be heard at the IWCC’s Springfield Office:  Monday and Wednesday

• Zone 3 cases will be heard at the IWCC’s Peoria Office:  Wednesday and Friday 

• Zone 4 cases will be heard at the IWCC’s Chicago Office:  Monday, Wednesday, and Friday

• Zone 5 cases will be heard at the IWCC’s Rockford Office:  Tuesday and Thursday
  Zone 6 cases will be heard at the IWCC’s Chicago Office:  Monday, Wednesday and Friday

Pro Se settlements may be presented to the Emergency Arbitrator on the second day of the Call, only.

Chairman Brennan  advises  that,  prior  to  making  use  of  the  Emergency  Motion  Call,  attorneys  should  engage  in  personal  consultation  and  make  reasonable  attempts  to  resolve  differences.  The  Chairman  believes (and we concur) Illinois  Supreme  Court  Rule  201(k)  and  Rule  3.4  of  the  Illinois  Rules  of  Professional Conduct serve as appropriate guides for counsel during these exceptional times.

On the Deposition Front: Late last week, the Illinois Supreme Court entered an order temporarily amending Supreme Court Rule 206 to ease the requirements for remote depositions. The amended Rule is effective immediately and in relevant part notes “Where a deponent testifies from a remote location and no neutral representative or representative of an adverse party is present in the room with the testifying deponent, care must be taken to ensure the integrity of the examination. The testifying deponent may be examined regarding the identity of all persons in the room during the testimony. Where possible, all persons in the room during the testimony should separately participate in the videoconference. In furtherance of their obligations under Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(d) (Misconduct), counsel representing a deponent should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b) he or she may not consult any written, printed, or electronic information during the examination other than information provided by the examining attorney. Unrepresented deponents may be similarly instructed by counsel for any party.”

KCBA Attorneys continue to work to complete depositions as agreeable to continue to move matters toward some successful conclusion. We are also seeking June hearing dates as allowed to continue to attempt to move the litigated cases to conclusion in the interests of our clients.

This article was prepared by Shawn R. Biery.  If you have any questions about current procedures, need an Illinois Rate Chart, or a handy reference guide to COVID Investigation and exposures, feel free to contact Shawn at sbiery@keefe-law.com.

Synopsis: False Identity Claim Causes Confusion and IL WC Commission Considers Additional Evidence After Record is Closed. Research and comment by John Karis, J.D.

Editor’s comment: The IL WC Appellate Court recently affirmed the IL WC Commission’s decision to consider the transcript from an earlier claim under a different name which aided in the disposition of the case where claimant admitted that he used a stolen identity.

In Centeno v. Illinois Workers' Compensation Comm'n, Claimant Centeno, filed an Application for Adjustment of Claim pursuant to the IL Workers’ Compensation Act seeking benefits for injuries he allegedly sustained on October 7, 2010, while in the employ of respondent, Minute Men of Illinois. Following a hearing pursuant to section 19(b) of the Act, the arbitrator found claimant’s injuries to be compensable and awarded him TTD benefits, reasonable and necessary medical expenses, and prospective medical care. The Illinois Workers’ Compensation Commission (Commission) reduced the award of medical expenses but otherwise affirmed and adopted the arbitrator’s decision and remanded the matter for further proceedings. On judicial review, the Circuit Court of Kane County increased the weekly TTD rate but otherwise confirmed the Commission’s decision.

While Centeno’s first case was pending in the IL Appellate Court, Claimant filed a successive “Petition for an Immediate Hearing” pursuant to section 19(b) of the IL WC Act. At the hearing on the section 19(b) petition, Respondent elicited testimony from claimant, suggesting that he had been employed under two different identities. Claimant admitted that he used the stolen identity of “Nelson Centeno”. It was also determined he filed a separate WC claim under “Robert Morales” against Countrywide Insurance alleging injuries to his back and legs from a lifting accident on August 7, 2014.  Thereafter, claimant’s attorney requested that the proceeding be bifurcated due to a “breakdown” in the attorney-client relationship that made him question whether he could ethically remain as claimant’s counsel. The arbitrator granted the request. When the hearing resumed a month later, claimant’s attorney announced that he would continue representing claimant but moved to withdraw the section 19(b) petition. The arbitrator denied the motion to withdraw and heard additional evidence. Ultimately, the arbitrator declined to award claimant any benefits subsequent to the first section 19(b) hearing.

Claimant sought review of the arbitrator’s decision before the Commission. The IL WC Commission issued a decision and opinion on review, affirming and adopting the decision of the arbitrator and remanding the matter for further proceedings. The Commission in their decision commented on the disingenuous actions of claimant Nelson Centeno a/k/a Roberto Morales. It was noted Centeno filed a second claim under the name Roberto Morales. It was noted because of this admission, these two cases were so inextricably intertwined that the transcript in the Morales claim and the transcript in the Centeno claim would have to be considered together. The IL WC Commission in their decision amended the Application for Adjustment of Claim filed in the Nelson Centeno case and the Application for Adjustment of Claim filed in the Roberto Morales case, sua sponte, to reflect the name Nelson Centeno a/k/a Roberto Morales. The Commission also attached Arbitrator’s Decision and considered the transcript from the Roberto Morales case as an exhibit to the record.

The Commission noted that during oral arguments, claimant sought enforcement of the first arbitrator’s decision, along with TTD benefits and penalties for nonpayment of medical expenses. The Commission noted that the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act

On judicial review, the circuit court confirmed the decision of the Commission. Claimant appealed to Appellate court arguing the Commission’s decision is “null and void” because it exceeded its power by expanding the record on review to include trial transcripts and evidence from another case to support its decision. Claimant further argued that the Commission violated the law-of-the-case doctrine by erroneously concluding that it was without authority to award him the previously awarded medical bills, TTD and prospective medical.

The IL WC Appellate Court affirmed most of the Commission’s decision. They noted regarding the expansion of the record that Illinois courts recognize documents containing readily verifiable facts from sources of indisputable accuracy may be judicially noticed if doing so will aid in the efficient disposition of a case. Public documents are included in the records of courts and administrative tribunals are subject to judicial notice. In the instant matter, the Commission attached to its decision on review the arbitrator’s decision in the Morales case and considered the transcript from that case. The Appellate Court noted this information was readily verifiable and aided in the efficient disposition of the case by providing “a full understanding of the dishonest nature of claimant, i.e., that claimant admitted that he used the stolen identity of someone named “Centeno.”

The Appellate Court also affirmed the Commission’s finding the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act. They noted the Commission, as an administrative body created by legislative enactment for the purpose of administering the Act, lacks the inherent powers of a court and can only make such orders as are within the powers granted to it by the legislature. The only method provided by the Act for enforcing a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act.

We do not believe this case sets the precedent for considering transcripts from all other trials after the record is closed. What it does show is how in certain situations such as identity fraud it can allow the Arbitrators, Commission and reviewing courts to consider evidence after the fact. However we do not believe this applicable in all situations and will have to be assessed by a case by case basis.

This case also shows once again the only venue to enforce an award is circuit court and not the IL WC Commission. As the Appellate Court noted the Commission is limited in its abilities based on the power they have been granted by legislature.

This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at jkaris@keefe-law.com.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com