CHANGES IN ILLINOIS WORKERS'S COMP LAW

On July 20, 2005, the Governor signed HB 2137 which implemented some significant changes into the existing law. These changes include: a) ensuring prompt payment to medical providers who treat injured workers and allowing 1% interest per month after 60 days on unpaid bills; b) a prohibiting medical providers from billing an injured worker for the balance of charges not paid by an insurance company while the claim is pending; c) creating a third Workers' Comp panel to expedite resolution of disputed claims; d) simplifying procedures for the introduction of medical records into evidence in hearings; e) increasing penalties for the unreasonable delay of Workers' Comp benefits from $10 a day to $30 a day and from $2500 per claim to $10,000 per claim. In addition, several important benefit provisions were changed. Two of the most signficant changes include: a) increasing the maximum benefit for a worker killed on the job to the greater of $500,000 or 25 years at the ma rate(was $250,000 or 20 years); and increasing burial benefits to $8000, up from $4200. Thanks to ITLA for their summary of the changes.

COLLATERAL SOURCE RULING

The Illinois Supreme Court issued an important ruling on the collateral source doctrine on Thursday, July 21, 2005. In Arthur v. Catour(Docket 97920, 97946, consolidated), the plaintiff, Joyce Arthur was injured while attempting on auction on property owned by one of the defendants. Plaintiff suffered a broken leg, and indicated in discovery that her specials were $19,314.07. Plaintiff had private health insurance[Blue Cross]through her husband. Blue Cross, through various contractual discounts with the relevant health care providers, only paid $13,577.97 on plaintiff's behalf. Defendants filed a motion for summary judgment seeking to limit plaintiff's claim for medical expenses to the amount paid, as opposed to the amount billed. The trial court granted the motion. The Appellate Court reversed, holding that the plaintiff damages included the entire amount billed, provided those charges were "...reasonable expenses of medical care".

The Supreme Court opinion[which involves a lengthy and fascinating treatment of the collateral source rule]finally gets down to brass tacks in the last paragraph. The Court ruled that "...plaintiff cannot make a prima facie case of reasonableness based on the bill alone, because she cannot truthfully testify that the total amount has been paid. Instead, she must establish the reasonable cost by other means, just as she would if the services had not yet been rendered..."

My reading of the opinion - makes life more complicated for us personal injury trial lawyers. The opinion seems to suggest that if insurance discounted some of the bill, you better have a doctor testifying that the entirety of the bill was fair and reasonable. It appears from this opinion that simply testifying that a bill is paid will not longer guarantee admission of the actual bill.

CAPS NEWS

Noted a couple of items recently on caps that were of interest...

First, Geoffrey Fieger recently tried a case in Michigan that involved terrible injuries to an infant shortly after his birth. The child, born 16 weeks premature, was only 11 weeks old when a doctor in the neonatal unit at Beaumont Hospital in Royal Oak, Michigan set the child on fire while trying to use a cauterizing tool in an oxygen tent. The child, who had some pre-existing medical issues, suffered significant burns, and endured numerous surgeries in the months after the incident. He stayed in the hospital a total of two years, heavily medicated and on a ventilator. He is currently using a wheelchair, dependent on a ventilator and has brain damage. The jury awarded the boy $8.2 million dollars for the pain and suffering he endured. Due to recent legislation in Michigan, the boy's award was reduced to $575,000, less than 10% of what a jury awarded. Whatever money the family receives after fees and costs will likely be gone shortly, in light of the child's on-going medical needs.

Some better news out of Wisconsin. This past week, the Wisconsin Supreme Court struck the statutory cap of $350,000 on medical malpractice awards for non-economic damages(pain and suffering). The Court found the statute to be unconstitutional and violated equal protection guarantees. Hopefully the Illinois Supreme Court will do the same thing when this issue lands on its doorstep.

FOLLOW-UP: RETALIATORY DISCHARGE SETTLEMENT

Discussed in last post how important is is to fully understand your compensatory damages in retaliatory discharge cases before jumping into them. It's also important to understand taxable consequences of a settlement in these cases. First, if any portion of the settlement is to compensate the plaintiff for lost wages, that portion of the settlement is taxable income. The client should be advised before settlement talks get serious that he'll have to duke Uncle Sam the following April for the lost wage portion.

In addition, there is some caselaw that suggests that the employer can withhold FICA from the lost wages portion of the settlement[see James v. Mobile Medics, (4th Dist. 2003), 341 Ill.App.3d 451, 275 Ill.Dec. 230, 792 N.E.2d 461]. In the retaliatory case I just settled, defense counsel wants to do precisely that - withhold the appropriate amounts from the lost wages portion of the settlement. I am suggesting that they simply cut the check for that amount in full and send a 1099 to plaintiff next year. We are still butting heads on it.

Also, in the May, 2002 Illinois Bar Journal, Nile J. Williamson wrote an excellent piece about how to address some of the tax questions that come up when you have settlements that include both taxable and non-taxable amounts. Worth a look.

RETALIATORY DISCHARGE DAMAGES

Have been hotly prosecuting a retaliatory discharge case over the last several months, and was pleased when the case settled on Friday, July 9, 2005 for a healthy amount. When litigating retaliatory cases[i.e where employee fired for filing a Workers Comp claim] it is important that your understand your compensatory damages at the outset. The law provides that the discharged employee is entitled to those wages he would have earned if he had not been terminated. Couple of comments about that - first, have a firm understanding of what your client would have earned if he hadn't been fired. For example, let's assume the client gets hurt at work and files a Workers' Comp claim. Injury is pretty serious - there is no real dispute that your client won't be able to do what he had been doing before the injury. Assume also that he isn't qualified for any other position with employer. Shortly after he files the Comp claim, he gets fired. Your first reaction - "I'll sue them for retaliatory discharge!" Be careful - if your client wasn't physically capable of returning to that job[and no other positions available]you will be hard pressed to convince a trial judge that you should be allowed to submit evidence of those lost wages.

Change the scenario a bit: assume your client could have returned to that job, but employer fires him anyway. Don't let your client sit around at home waiting for that big verdict. Have your client keep a job log showing what potential employers he contacted and spoke with about a job. Juries are going to respond better when they can see that your client is out there making an effort, trying to get a job. That same jury won't embrace a former employee who sits at home watching Springer reruns waiting for his ship to come in.

Empty Chair Issue

An interesting issue popped up in one of my cases today. I represent a nice woman in her late 50's who suffered a serious cervical fracture when she tripped on a defect at a local college and fell down 13 concrete stairs. I filed suit against the college and things were moving along pretty well. Unfortunately my client learned that she had potentially terminal medical condition[unrelated to the fall], so I moved to advance the case for trial. At about the same time, the college filed third party claims against 4 other defendants, seeking to get them to contribute to any verdict or settlement. Those new third party defendants appeared at the hearing and vehemently objected to my request to advance the case, saying it is unfair to them to have to put their case together in 30-60 days. The judge agreed and suggested that perhaps I could sever the cases. He noted however, that if I do so, I would only try the case against the college and the college would be allowed to suggest other parties, not at trial, are responsible[otherwise known as the "empty chair defense"]. Lots of lawyers are adamant about avoiding the "empty chair" at trial - but I am think it wouldn't be much of a factor in my case. The evidence has shown the college was clearly on notice about the defect and simply didn't do anything about it. My inclination is to go forward and try the case against the college alone and let the chips fall where they may.

In addition, it never ceases to amaze me how defense lawyers need months and years to put together a defense in a very straightforward premises liability case.