WCLA Professional Responsibility Boot Camp

• Legal Malpractice Considerations for Workers’ Compensation Lawyers

• Monday February 13, 2012• 10:15 am to 11:45 am• James R. Thompson Center Auditorium,

Chicago, IL• Daniel F. Konicek• Kim E. Presbrey

PresentersDaniel F. Konicek

• Daniel F. Konicek practices in the areas of professional liability, commercial litigation and personal injury. He has tried to verdict over 100 jury trials in the state and federal courts. He has represented clients in administrative hearings before the Department of Professional Regulation and Attorney Disciplinary Commission. He was honored as one of Illinois’ top lawyers by inclusion in the 40 under 40 Illinois Attorneys to Watch and was named in the 2006, 2007, 2008, 2009 and 2010 Illinois Super Lawyers Publication. He is a member of the Leading Lawyers Network, the Million Dollar Advocates Forum, Who’s Who and Litigation Counsel of America. Mr. Konicek, who serves on the ITLA Board of Managers, has tried dozens of cases involving damages in excess of a million dollars and recently obtained a multi-million dollar settlement in a legal malpractice claim alleging conflict of interest and breach of fiduciary duty. Mr. Konicek earned his B.A. at Purdue University in 1986 and his J.D. (with honors) at the Illinois Institute of Technology Chicago – Kent College of Law in 1990. He is licensed to practice in Illinois, the U.S. Supreme Court, U.S. Court of Appeals 7th Circuit, U.S. Court of Appeals 4th Circuit, U.S. Court of Appeals Federal Circuit, U.S. District Court Northern District of Illinois, U.S. District Court Southern District of Illinois, U.S. District Court Central District of Illinois, U.S. District Court Western District of Wisconsin, U.S. District Court Eastern District of Wisconsin, U.S. District Court Northern District of Indiana, U.S. District Court Eastern District of Michigan, and the U.S. District Court District of Connecticut. Mr. Konicek has also been admitted pro hac vice in Courts in the States of Arizona, Connecticut, Colorado, Florida, Indiana, Iowa, Michigan, Minnesota, Missouri, New York, North Carolina, Texas and Wisconsin. Mr. Konicek is a member of the Illinois State Bar Association, American Association for Justice, Litigation Counsel of America, Illinois Trial Lawyers Association, and the Kane County Bar Association.

PresentersKim E. Presbrey

• Kim E. Presbrey is the managing partner of Presbrey & Associates, P.C. he has practiced law in the field of workers’ compensation since 1977. He attended Northwestern University in Evanston, Illinois for his B.A. and Vanderbilt University Law School, Nasville, Tennessee for his Juris Doctorate. He is a past president of the Illinois Trial Lawyers Association, Member of the Board of Governors for the Illinois State Bar Association, member of the Workers’ Compensation Section of the Illinois State Bar Association, Vice President of the Workplace Injury Litigation Group and Past Secretary and current section member of the Association of Trial Lawyers of America Workers’ Compensation Section. He has authored numerous articles on Workers’ Compensation on the subjects of settlement contracts, trial preparation, Section 7 and Section 8 benefits, case evaluation, vocational rehabilitation and penalties.

Fact Scenario No. 1• Plumbers’ Welfare Fund is governed by ERISA as a self-funded welfare plan as defined by 29 USC

1002(1). • Bob’s Water Company is an Illinois Corporation and is a contributing employer whose members are

covered by the Plan. PJ was an employee of Bob’s and was a participant under the terms of the Plan. East Bend Mutual Insurance Company was the workers’ compensation insurance carrier for Bob’s Water Company.

• In 2002 while working as a pipe fitter, PJ suffered an injury to his back. Initially, PJ did not file a workers’ compensation injury report. Rather, he submitted the bills to the Plan for payment through its PPO network, Blue Cross Blue Shield.

• On May 21, 2003, PJ filed a workers’ compensation claim regarding the 2002 back injury. PJ, through his attorney, Colonel Sander, executed a subrogation and reimbursement agreement between the Fund, participant and injured claimant. The subrogation agreement provides, inter alia, that the claimant and participant, on whose behalf the find paid, or may in the future pay benefits pursuant to the fund’s plan, assigns to the fund any amounts of money recovered as the result of making of any claim against any person or entity arising out of the occurrence.

• On December 15, 2006, the Workers’ Compensation Commission issued its decision and opinion affirming and adopting the arbitrator’s decision of June 6, 2005, holding that East Bend shall pay $390,000 for necessary medical services as provided in §8(a) of the Act.

• The welfare plan paid $250,000 in medical bills for PJ based on the 2002 injury. • East Bend distributed the money to Attorney Colonial Sanders who likewise distributed the money

to himself for fees and to his client.

Fact Scenario No. 2• Doc Martin is injured while employed by Bob’s Water Company. Doc Martin

sustained severe injuries requiring three surgeries. Doc Martin retained workers’ compensation attorney Jack Daniels. Jack Daniel files his appearance and client’s claim with Industrial Commission. After two years of representation, Jack Daniels decided he no longer wants to represent Doc Martin. Jack Daniels has an office conference with Doc Martin advising him he is withdrawing from representation. Thereafter, Doc Martin retains a subsequent workers’ compensation attorney, Jim Beam. Jim Beam never files an appearance in the workers’ compensation case. Jack Daniels never withdraws. On July 2, 2004, Jack Daniels, as attorney of record (although no longer representing Doc Martin), receives in the mail an order dismissing Doc Martin’s case for want of prosecution. Jack Daniels forwards the order to Jim Beam. In November, 2005, Jim Beam advises Doc Martin that he is no longer going to represent Doc Martin.

• One year later, November 2006, Doc Martin learns, for the first time, his case was dismissed for want of prosecution on July 2, 2004.

• Doc Martin sues Jim Beam and Jack Daniels for malpractice.

Fact Scenario No. 3• Dick Shore, an employee of Bob’s Water Company, is injured during the course of

his duties as an employee for Bob’s Water Company. Dick Shore was electrocuted while attempting to close a junction box and suffered severe injuries. Dick Shore underwent numerous surgeries to treat the injuries he sustained in the course of his employment, and in the course of treatment, on July 2, 1999, following a final surgery to repair his injuries, Dick Shore died at Northwestern Memorial Hospital.

• Dick Shore’s wife, Jean, hired Jack Daniels, workers’ compensation attorney. Jack Daniels made claims for workers’ compensation against Insurance Company as the insurer of Bob’s Water Company pursuant to the Illinois Workers Compensation Act for injuries he sustained in the course of his employment.

• Jack Daniels successfully prosecutes the workers’ compensation case recovering $500,000 on behalf of Jean Shore.

• One-and-one-half years later, Jack Daniels is sued for legal malpractice for failing to advise Jean Shore that she had cause of action against Northwestern Memorial Hospital for medical negligence. The medical negligence case had a value of $5 million.

Fact Scenario No. 4• Workers’ Compensation attorney, Jack Daniels, refers Jean Shore’s case to

medical malpractice attorney, Jim Beam. Medical malpractice attorney, Jim Beam, decides that he is going to test the constitutionality of the Illinois Medical Malpractice Act and the requirement that an affidavit of merit be attached to the complaint. Thus, Jim Beam files a medical malpractice case without the affidavit of merit, unbeknownced to referring attorney, Jack Daniels, and unknown and without the authority of client, Jean Shore. Jean Shore’s medical malpractice case against Northwestern Hospital is dismissed for failure to comply with the Medical Malpractice Act requiring an affidavit of merit. On appeal, the appellate court affirms the dismissal for, among other reasons, Jim Beam’s failure to give notice to the Illinois Attorney General, a necessary requirement in order to test the constitutionality of a statute. Illinois Supreme Court affirms the dismissal.

• Jean Shore’s medical malpractice case against Northwestern Memorial Hospital for the death of her husband is worth $5 million. Jean Shore sues attorney Jack Daniels and Jim Beam for legal malpractice.

Fact Scenario No. 5• Workers’ compensation attorney, Jack Daniels, refers

Jean Shore’s case to medical malpractice attorney, Jim Beam. Medical malpractice attorney, Jim Beam decides to turn the case down. In a letter to Jean Shore, Jim Beam advises Jean he is not accepting the case and advises her that the statute of limitations is two years. Jim Beam carbon copies Jack Daniels. Jack Daniels never sees or speaks to the client after the referral to Jim Beam. Unfortunately, the hospital is a municipal hospital and governed by a one year not two year statute of limitations. Jean Shore sues Jack Daniels and Jim Beam for legal malpractice.

Fact Scenario No. 6• Workers’ compensation attorney, Jack Daniels, is hired

by Jean Shore, a victim in a car accident. Jean was hit by Pete Wally. Jean Shore was delivering pizza to Phi Delta Theta for her employer, Harry’s Pizza. Jack Daniels entered into a contract to represent Jean in a workers’ compensation claim. Jack also undertook additional investigation into Pete. Jack concluded there was no insurance. Jean’s injuries were severe. Her medical bills were $1 million. Jack never investigated Jean’s employer’s uninsured motorist coverage. Jean’s employer had a $5 million policy. Jean sues Jack Daniels for legal malpractice.

Fact Scenario No. 7• Workers’ compensation attorney, Jack Daniels, is hired by

Premium Insurance Company on hundreds of cases to defend workers’ compensation cases. Wally’s Pizza, a sole proprietorship, is a very small insured under a Premium policy. Jean Shore is an employee of Wally’s Pizza and is injured in the parking lot outside of Wally’s Pizza. The parking lot is owned by Wally and his wife. Wally and his wife do not insure the parking lot. Wally tells Jack he does not insure the lot and that if he is sued, he and his wife will go broke and their little family of four will be put out on the street. Jack files a motion in the workers’ compensation case asking the matter be dismissed because Jean was not in the scope of employment.

Fact Scenario No. 8• Mr. Onepercent is the CEO of Moregas Company. He is in his office when two maintenance people arrive to deliver a new,

bigger, and grander desk. While assembling the desk Onepercent bends over to assist them in assembling the shoe shelf underneath the desk. As he bends down to assist them, his pants split causing him to jolt backwards injuring his neck and low back. Onepercent earns over 1 million dollars per year and receives stock options and bonuses that far exceed his salary on a regular basis.

• Moregas’s TPA reviews the claim and denies on the basis of liability but also orders an IME to determine whether the injury required any further treatment. While reviewing a plain x-ray after examining Onepercent, IME notes in his report that he believes there is a tumor in the left lung. He also believes that the injuries to Onepercent’s back and neck require surgery.

• Onepercent retains Notsobright to file a workers compensation case on his behalf even though he had testified before his state legislature that the system was “a giveaway program”. Notsobright receives an appearance from Evenlessbright and files a 19(b) petition for immediate relief. Notsobright requests a copy of the IME, however when Evenlessbright sees the conclusion he refuses to produce it stating that it is not a treating record.

• Three months after filing the 19(b) petition is had and Onepercent receives a favorable decision about six weeks later. Notsobright is instructed to review the decision and one year later the Commission affirms. Onepercent then goes back to his treating physician to have the first back surgery performed and during the pre-op physical it is discovered that Onepercent now has inoperable lung cancer. His oncologist tells he and his wife that if they had known about the tumor a year before that it would have been a simple procedure to remove and that the survival rate would have been 95%.

• On the way home from the oncologist, Onepercent tells his wife that he had an x-ray during the IME and wonders if the tumor was visible. Onepercent dies 3 months later after extremely painful radiation therapy and his widow retains Maddog to represent her legal interests.

• Maddog sues the IME doctor for breach of his Hippocratic oath. Maddog sues Notsobright for failure to demand the production of the IME report. Maddog sues Evenlessbright for failure to produce the IME report when requested. Maddog sues the individual commissioners for failure to complete the 19(b) within six months as required by statute.

• Mrs. Onepercent requests 100 million dollars in damages. She never believed in caps like her husband did.

Fact Scenario No. 9• Notsobright is headed on a much needed two week vacation to

Puerto Villarta. He instructs his secretary to open his mail and place it on his desk for his review. When he returns from his vacation on a Sunday he goes to his office to catch up. He looks at the third letter in the pile and sees a copy of a UR report stating that his client, Mary Nagger, is no longer approved for continued physical therapy.

• Notsobright calls Nagger on Monday morning and informs her of the UR report limitation. Nagger informs Notsobright that she further injured her back in physical therapy the Friday before he returned from his vacation.

• Nagger sues Notsobright for breach of the standard of care stating that if she would have been informed of the limitation, she would have discontinued the physical therapy and not been injured.

Fact Scenario No. 10• Nagger goes to work on December 22nd at 6AM. After he has punched in

he realizes that he has left his work shoes in his car. Nagger asks his foreman if he can go back to his car and get his work shoes. The foreman gives him permission and Nagger heads for the parking lot which is on the other side of Route 25 in Elgin. On his way back across Route 25, in the dark, on a pathway that the employer knew or should have known that employees would be crossing, Nagger was struck by a car and killed.

• Mrs. Nagger retains Alittlebrighter. Alittlebrighter files a 19(b) petition for benefits and Evenlessbright files a response stating that the accident is not compensable because the injury occurred on a public road, not on the employer’s premises.

• Alittlebrighter files a common law death action claiming that the employer failed to provide a safe ingress and egress to the plant. Evenlessbright files a motion to dismiss claiming exclusive remedy. The motion to dismiss is denied based upon the responsive pleading in the 19(b). The jury awards a 5 million dollar verdict and Evenlessbright receives a legal malpractice claim from the employer