Republishing Published 'Non-Published' Appellate Rulings

Thursday, December 10, 2009 | 0

By Gene Keefe

Synopsis: Catch 22, or is it Catch 23, in Illinois work comp appeals? We focus again on the “republishing” of “published” non-published appellate opinions of significant importance to the defense industry.
 
Editor’s comment: Hang on to your hats, readers. We feel a novice or outsider looking at the Illinois system of WC jurisprudence might consider some of what is done in this state to be unusual, to say the very least. We always find the rules to be fascinating and challenging for judges, lawyers, the parties and the public to truly understand and comprehend. Illinois Supreme Court Rule 23 allows our Illinois Appellate Court, at its sole discretion, to “non-publish” its orders disposing of cases. We have always been captivated to see how this Rule is employed by our higher court. “Non-publication” means the court’s ruling is not released for public consumption and is generally non-precedential. The parties alone are typically given a copy of the order and the case some times moves up to the Supreme Court or some times back to the Circuit Court or the litigation simply ends.
 
We note Rule 23 orders are issued in Illinois workers’ compensation rulings at least as much or perhaps even more than regular rulings. Your editor has handled several dozen Appellate Court cases before the five-member Workers’ Compensation Division of the Appellate Court—if you do the research, very, very few are actually published and out there for review. The vast majority of these carefully drafted rulings, some of them involving extraordinarily complex and intricate legal decisions, all remain “non-published” and are effectively kept secret from the public eye.
 
As you can tell from the tone of this Update, we prefer all legal and political rulings and decisions to always be made public. Good, bad, happy or sad, the public votes and pays the taxes that fund the courts and have a right to know what is going on and debate it in this free society. We particularly feel appellate court rulings with wild and mild impact should be out there for review and open for debate and comment from you and John Q. Public. We don’t like anything in the legal sphere to be intentionally or routinely kept from the public eye.
 
So, please understand our view is the “plain English” meaning of “non-publication” would indicate the members of the Court are affirmatively ruling the order isn’t to ever be published or generally disseminated. Not so fast, not so fast!! We always wonder why the Illinois Appellate Court would spend all the time and effort in carefully and thoroughly reviewing the facts and law and creating a serious dissertation on a specific matter and then “non-publish” it. Particularly in this day and age of super-fast communication and the worldwide web, one would think it is simple matter to publish even the simplest opinions. Every ruling of the august members of this Court is clean, clear and generally excellent—why hide them under a bushel basket? We assure all of you there are numerous legal services waiting to grab their orders and put them out there first.
 
What is even stranger is some of the “non-published” opinions are then occasionally leaked out and published!!! The editor of the quarterly Illinois State Bar Ass’n newsletter is a very solid and knowledgeable academician with whom we have debated this issue for some time. He feels there is nothing wrong with publishing or otherwise reporting “non-published” opinions of interest to the State Bar membership. The problem we have with that approach is John Q. Public and the business side of the WC industry can’t be ISBA members if they want to be—you have to be a lawyer to join. His newsletter is always well-thought out and contains excellent content that would be important for many of you to read. So, we guess it is up to us to re-publish his publication of the important non-published rulings for the greater good of everyone!
 
Accordingly, in the case of Carper v. CMT Enterprises, as affirmed in a Rule 23 decision by the Appellate Court of Illinois, Workers’ Compensation Commission Division, the Arbitrator awarded Petitioner, in an ex parte hearing, 21 2/7 weeks of temporary total disability benefits, $55,268.52 in medical expenses, Section 16 attorney fees in the amount of $12,302.47, Section 19(l) penalties in the amount of $1,490 and 19(k) penalties in the amount of $30,756.17. The Commission on review modified the order of the Arbitrator taking away the penalties/fees. It appears claimant’s counsel didn’t file a proper petition for them.
 
The critical concern you will see in this ruling is the problem with Illinois employers and adjusters hanging onto defense files until the last minute and beyond. We always caution adjusters, employers and claims managers to understand you make a massive mistake to hang onto a file until either just before or just after a hearing. While we trust many of our brethren on the other side, you also are taking a chance to rely on some members of the claimant bar. We actually had an adjuster hold a file until a deposition of claimant’s expert was taken on an ex parte basis pursuant to dedimus and then sent it to us for handling. It was technically impossible to then cross-examine the other side’s expert. When you do that, there isn’t much even the best defense lawyer can do to get a solid outcome.
 
When the adjuster holds the file after the litigation starts and motions are noticed and filed, the claim file may then be sent to the defense counsel. At that point, the defense attorney is then given the unhappy task of trying to straighten things out or reverse things in mid-stream. In the Carper case we cite above, Petitioner was injured and unquestionably gave notice to the employer and sought treatment in an emergency room. He was diagnosed as having fractures of the hand. He underwent surgery and was later scheduled for more surgery but it was cancelled due to non-authorization from the workers’ compensation carrier. Now, every veteran adjuster should know, at that point, you have a fight on your hands and truly need defense counsel.
 
Petitioner later developed an infection and osteomyelitis requiring further surgeries and treatment. He sought competent, veteran legal counsel who simultaneously filed an Application for Adjustment of Claim and a 19(b) petition. The claim was set on a notice of hearing and the Arbitrator assigned a trial date. Petitioner’s attorney notified the employer of the trial date—please note, under the Rules, the claimant attorney doesn’t have to send notice to the adjuster or insurance carrier/TPA; it only has to be sent to your account. No one appeared.
 
On the hearing date, Petitioner’s attorney asked the Arbitrator to enter an order specifically setting the matter for a second trial setting about one month later. The order was specific and noted, “Petitioner filed a petition for immediate hearing with the Application for Adjustment of Claim. The Commission issued notice…for the status call. Petitioner appeared and a trial date was set. Respondent [or its counsel] failed to appear. This matter is now set for [a second trial date]. No further continuances will be allowed. Respondent’s failure to appear for trial will result in a trial ex parte.”

On the second setting of the hearing, the employer’s president and owner appeared before the Arbitrator, acknowledged he received a copy of the order setting the matter and he forwarded a copy of the order to his insurance carrier/TPA who acknowledged receipt. The respondent/owner declined to participate in the proceedings and left the hearing room before the hearing. Thereafter, the matter proceeded ex parte. After a hearing on the merits of the case the adjuster apparently sent his file to a defense attorney. The defense attorney then sought to set aside the evidence by filing a motion to strike the evidence presented during the hearing on the grounds of defective notice. The Arbitrator denied that motion and entered his decision as stated above. As we indicate, the matter went all the way to the Appellate Court who entered a very clear and well-researched ruling that we hate to say we have to agree with.
 
The message from this article is three-fold:
 
    1.    Don’t hang onto unquestionably disputed defense files to save a dollar or two—the cost can be perilously high if you get whacked as the result of an ex parte hearing. If you know you are in a fight, get someone to fight for you and protect you at the hearings. Illinois workers’ compensation claims are becoming increasingly expensive and rapidly moving into the six and seven-figure ranges.
 
    2.    Keefe, Campbell & Associates’ attorneys know we are sometimes like firefighters. If you need assistance at the last minute, send us an email or call the numbers at the bottom of these Updates. We have attorneys across the state who handle every status call in Illinois, every month. We are used to trying to catch up rapidly but please give us a fighting chance—the more time for preparation you can provide the better but, if things fall through the cracks, send us an email with the file, give us a shout and we will do our fighting best.
 
    3.    If this excellent and well-reasoned ruling was important enough for the Illinois State Bar Association to learn about it, it should be important enough for everyone in the industry to read. As court observers, we again ask the great and storied members of our Appellate Court, Workers’ Compensation Division to put simple, moderate and critically important rulings out there for everyone to read.
 
<i>Gene Keefe is a partner for the Chicago workers' compensation defense law firm of Keefe Campbell & Associates. This column was reprinted with his permission from the firm's newsletter.</i>