Attacking Medical Costs

November 2015

Petitioner settled two cases for $24,702.07, representing 20% loss of use of petitioner's right hand and 37.5% loss of use of her right arm. The settlement was consummated even though the provider claimed a balance was owed on billing arising out of the care it rendered to petitioner, mostly physical therapy. While there was no doubt that the balances remained outstanding, there was good reason for non-payment. They represented unreasonable and unnecessary care based on a Utilization Review secured by the Workers' Compensation carrier. Still, the parties wanted to settle the underlying Work Comp case. To achieve that purpose, a settlement was struck with the contract containing language obligating the insurance carrier to indemnify and hold petitioner harmless regarding any collection attempt made by the provider. This obligation included providing a defense.

When the provider did in fact sue the petitioner, BCM was retained to defend, making us, at least in name, "petitioner's counsel."

I filed an Answer and Affirmative Defense in behalf of petitioner, charging that the bills the provider was seeking to collect represented unreasonable and unnecessary care and treatment. Moreover, the charges exceeded amounts allowable under the Workers' Compensation Fee Schedule. The provider countered that any issues of Utilization Review were irrelevant and the Fee Schedule did not apply. It relied on the written contract that the petitioner had signed when she engaged the provider for care, arguing she had not performed under it, plain and simple. While I could not dispute the petitioner had signed the contract, I argued that any "failure" of the petitioner to live up to it resulted from a lack of good faith and fair dealing on the provider's part. (All contracts in Illinois contain the implied covenant of good faith and fair dealing).

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Reform: An Up to the minute Primer (Redux)

November 2015

By Francis M. Brady

What follows is a summary of all the legislation¹ under consideration, or potentially under consideration, as of the end of October 2015, arranged according to the major reform issues.

Connecting the Injury to Work

The ease with which an Illinois worker connects her injury to her job unfairly expands the scope of workers' compensation. Legislation introduced this year seeks to redress this inequity by tightening standards concerning how the accident happened; where the accident happened; when the accident happened; and the quality of evidence necessary to prove all three.

The Senate Republicans introduced legislation addressing whether an injury is actually connected to a petitioner's job. In Floor Amendment 1 to SB0994, filed May 22, 2015, the Senate Republicans (and Governor Rauner, who supports this legislation) formalize the notion that activities that are: a) non-incidental to the worker's job or b) incidental to the job but also faced by the general public do not result in compensable accidents.²

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First District Addresses Admissibility of Photograph and Prior Injuries

October 2015

In Kayman v. Rasheed, 2015 IL App (1st) 132631, the First District Appellate Court recently upheld a decision of Circuit Court Judge Lynn Egan. The case involved a claim for lost income, admissibility of a photograph of defendant's vehicle and whether prior complaints of back pain could be raised at trial for impeachment purposes.

The case involved a rear-end accident. Janice Rasheed's vehicle struck the rear of Marilyn Kayman's vehicle. The defendant admitted negligence, but disputed the extent to which the 2009 collision caused plaintiff's alleged injuries.

The first issue presented to the appellate court was whether the plaintiff could make a claim for lost wages related to time spent attending physical therapy sessions, even though plaintiff lost no salary. Plaintiff alleged she had "lost the time" spent attending the physical therapy sessions. The trial court found there was no compensable loss of income or benefits and granted the motion. The appellate court held it is well settled there can be no recovery of speculative or unproven damages. They ruled, as plaintiff did not identify any cognizable economic damages arising from the physical therapy sessions, the trial court did not abuse its discretion in precluding the wage loss claim.

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Corporate Parent Not Entitled to Exclusive Remedy Protection

October 2015

In Burge v. Exelon Generation Company, LLC, 2015 IL App (2d) 141090, the plaintiff filed suit against Exelon Generation Company, LLC, (Exelon) alleging personal injuries sustained as a result of an unsafe condition while working at Exelon's facility. The plaintiff was employed by Exelon Nuclear Security, LLC (ENS). The plaintiff filed and settled a workers' compensation claim against ENS. ENS was a Delaware limited liability company, under which Exelon was the company's sole member.

The trial court dismissed plaintiff's complaint against Exelon, holding that his claims were barred by the exclusive remedy provision of the Illinois Workers' Compensation Act, 820 ILCS 305/1, et seq. In support of the motion, Exelon submitted an affidavit from the workers' compensation claims manager of the benefits department for "the entire Exelon-related system of workers' compensation benefits." According to the affidavit, Exelon used a third-party administrator which paid benefits to the plaintiff. In turn, Exelon funded the ENS account from which those benefits were paid.

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First District Appellate Court Assesses Cooperation Clause

October 2015

The First District appellate court recently addressed an insurer's duty to defend or indemnify. In American Access Casualty Company v. Farid Alassouli and Eileen Benson, 2015 IL App. 1st 141413, the Court held that: 1) American Access Casualty Company ("AACC") failed to act diligently to secure its insured's cooperation regarding an investigation of an accident, 2) AACC failed to present evidence that its insured's failure to cooperate was willful, and 3) AACC failed to present evidence that its insured's breach of a cooperation clause in the insurance policy substantially prejudiced AACC.

Background

On May 1, 2011, Farid Alassouli turned in front of Eileen Benson's car when she passed through an intersection. To avoid hitting Alassouli's car, Benson struck a car being driven by another motorist. Alassouli was ticketed for failing to yield to oncoming traffic.

Shortly thereafter, Benson made a claim for damages against Alassouli's AACC insurance policy. The claims adjuster for AACC, Cary Loseau, called Alassouli in order to obtain information regarding the accident. Alassouli initially answered the telephone call, but once Loseau told him he would be recording the statements, Alassouli hung up. Loseau then made another call and left a detailed voice message, advising Alassouli that it was important for him to return the call. Five days later, AACC called Alassouli and left a message with his roommate, again asking that Alassouli return the call. Alassouli did not return the second call. AACC then made two additional calls, leaving messages both times. However, Alassouli never returned the calls. AACC then had a skip trace conducted, but it did not reveal anything regarding Alassouli's whereabouts. AACC also retained a private investigator approximately two years after the accident to attempt to locate Alassouli. The investigator was unable to locate Alassouli or determine his current address.

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U.S. Court of Appeals Upholds Findings of Four OSHA Violations

June 2015

By Andrew R. Makauskas

In DuKane Precast, Inc. v. Thomas E. Perez, Secretary of Labor and the Occupational Safety and Health Administration, No. 14-3156 (US Circuit 7th), DuKane appealed a determination by an administrative law judge of a penalty of $70,000.00 for four violations. Three of the violations were characterized as serious and one as willful.

The underlying incident occurred at a plant in Naperville, Illinois in February 2012. A worker, William Ortiz, was inside of a bin, 18 feet in height, that was used for storing sand. Mr. Ortiz was in the bin trying to scrape sand from its inside wall when the sand beneath his feet gave way, causing him to sink and to be engulfed by sand falling into the space created by his fall. He was buried up to his neck in the sand. Coworkers ran to the bin and started to dig him out. They were able to remove the sand pressing on him above his waist but were not able to free him completely. According to the decision, the plant manager was informed of the incident within about 10 minutes of it happening. He investigated the matter and allegedly determined that there was no emergency and left the accident scene, allowing the coworkers to attempt to free Mr. Ortiz. After being unable to free him, and after additional sand pressed on Mr. Ortiz, he asked the coworkers to call 911 for professional assistance. This request was not immediately granted. The plant manager later called 911. The Naperville Fire Department's technical rescue team arrived with specialized equipment and freed Mr. Ortiz. It was estimated he had been trapped in the bin for 1 ½ hours.

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