The Crystal Ball: Using Medical Investigation to Predict Future Medical Exposure

June 2018

By Marina Takagi

With cases involving complicated medical issues, the idea of shutting down medical rights due to potential future medical exposure seems daunting and unpredictable. However, with thorough medical investigation, BCM’s Medicare Compliance Department is able to foresee potential exposure for a Medicare Set-Aside Arrangement (MSA), and recommend the best legal course of action to resolve the claim.

In such a case, the petitioner was a younger employee that alleged exposure to chemicals in the workplace. This was the beginning of the petitioner’s extensive treatment for scleroderma, Raynaud’s syndrome, pulmonary fibrosis, and systemic sclerosis. Ultimately, the petitioner underwent a lung transplant. Following the transplant, the petitioner continued treatment required to avoid transplant rejection, as well as treatment to combat numerous infections.

The Firm Defeats Marque Medicos’ Claim for Interest

May 2018

On May 4, 2018, Brady Connolly & Masuda, P.C. Attorney, W. Scott Trench, obtained a dismissal with prejudice in a lawsuit filed by Marque Medicos against a workers’ compensation insurer and its insured employer seeking recovery of statutory interest under Section 8.2(d) of the Illinois Workers’ Compensation Act for late payment of medical bills. Soon after the lawsuit was filed, the Illinois Appellate Court issued a decision in a putative class action lawsuit filed by Marque Medicos against numerous insurance companies for unpaid statutory interest. Marque Medicos v. Zurich, et al., 2017 Il.App. (1st) 160756. In the class action lawsuit, the appellate court held that Section 8.2(d) of the Act provided no private cause of action and affirmed dismissal of the lawsuit with prejudice.

In an effort to side step the Appellate Court’s decision in the class action lawsuit, Marque Medicos amended its complaint, asserting entitlement to recover statutory interest under the equitable theory of unjust enrichment – a cause of action which was not at issue in the class action lawsuit. In response, the defendants filed motions to dismiss the amended complaint. The motions argued that Marque Medicos’ clever pleading should not change the end result. Since the statute affords no private cause of action, Marque Medicos’ complaint should be dismissed no matter what label was placed on its cause of action.

Illinois Comp By The Numbers

May 2018

By Francis M. Brady

Outside influences can redirect the course of Illinois Workers’ Compensation Practice. Recent publications from two of them, the Workers’ Compensation Research Institute and the Illinois Legislature, have the potential to do just that.

WCRI, an independent, not-for-profit facility, located in Cambridge, Massachusetts, mines data from numerous sources, assesses it, and publishes various studies and reports. Its mission is not to advocate positions but, instead, to assist workers’ compensation policy makers and stakeholders in improving their systems.

Shining the Light on Trial Preparation

May 2018

In the case of Bobby Sims v. Berwyn South School District #100 the accident occurred when petitioner, who traveled from school building to school building performing maintenance functions, fell in a stairwell on district property. He claimed he couldn’t see the bottom steps because of poor lighting and, as a result, missed one, twisting his knee and sustaining a meniscus tear.

Trial preparation included two site inspections, one done exactly a year from the original accident and at the same time of day. That precision proved key as it conclusively demonstrated that at the time petitioner fell, the stairwell would have been illuminated by natural light flooding through an exterior window. Moreover, the pertinent entries from the Farmer’s Almanac were consulted and confirmed that lighting conditions in the stairwell upon the inspections were identical to the date of the alleged loss. Both inspections were well documented by photographs.

ILLINOIS APPELLATE COURT AFFIRMS TRANSFER BASED ON FORUM NON CONVENIENS DESPITE DEFENDANTS’ BUSINESS PRESENCE IN COOK COUNTY

April 2018

By Jeffrey F. Clement

In Schuster v. Richards, et al., 2018 IL App (1st) 171558, the First District Appellate Court affirmed the trial court’s ruling transferring the case from Cook County to Kane County under the doctrine of forum non conveniens. In Illinois, the doctrine of forum non conveniens allows a trial court, which otherwise has proper jurisdiction over a cause, to transfer it to another forum if the other forum can better serve the convenience of the parties and the ends of justice.

In the Schuster case, the plaintiff alleged, while a pedestrian, she was struck by defendant Richards’ automobile while Richards was driving in the course of her employment. Plaintiff sued Richards, Richards’ employer and the lessor of the automobile. The employer and lessor (hereinafter the “corporate defendants”) were sued solely under a theory of respondeat superior/vicarious liability. In other words, the plaintiff alleged Richards was an agent of the corporate defendants and that, as principal, they were responsible for Richards’ negligent acts and omissions. There were no allegations of direct negligence against the corporate defendants.

FIRST DISTRICT DENIES COVERAGE TO AN ADDITIONAL INSURED DUE TO UNFORGIVING EMPLOYEE EXCLUSION

April 2018

By Courtney Morso Driscoll

In Vivify Construction, LLC v. Nautilus Insurance Company, 2018 IL App (1st) 170192, the First District Appellate Court found an employee exclusion within the subcontractor’s policy barred coverage to the general contractor for a personal injury lawsuit even though the general contractor was an additional insured under that policy.

In Vivify, a construction worker, Pablo Vieyra, was injured when he fell from a second story scaffold. Vierya was employed by Victoria Metal Processor (“Victoria”), and the general contractor was Vivify Construction, LLC (“Vivify”). Vieyra filed a lawsuit against Vivify for failing to properly supervise the work site. Vivify then filed a third-party complaint against Victoria, claiming Victoria’s negligence led to Vieyra’s injury.