3-19-2019; Insurance Alert--Don't Have Your IL Operations Uninsured--Call Your Broker!!!; Mike Goldberg and Jimmy DeMunno Rest in Peace and more

Synopsis: INSURANCE ALERT—YOUR ILLINOIS OPERATIONS ARE ABOUT TO BE BARE/UNCOVERED FOR MAJOR RISK—READ THIS ARTICLE, CALL YOUR INSURANCE BROKER RIGHT NOW! Analysis by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D.

 

Editor's Comment: We reported to our readers a few weeks ago the Illinois Legislature was considering IL Senate Bill 1596. Fast forward 14 days and here it is: that didn’t take long, did it! Both Houses in our ITLA-controlled legislature passed SB 1596. Now the bill only awaits Governor Pritzker’s rubber stamp of approval by signing it with no apparent foresight to its effects on Illinois’ already struggling economy. Jobs and business are departing and the pace is probably going to pick up. Our worry is you are certain to have a coverage gap due to the language of this bill—if/when it becomes law.

 

The only way to circumvent this tragedy is to telephone your insurance broker to get some type of possible future coverage for these types of claims. Hopefully, where there’s a market; there’s future affordable coverage on the horizon. The only other way to fix this will be to attack it on a particular factual circumstances lending itself to constitutional challenges. But remember, the People’s Republic of Illinois is a one-party state with no true method to rein in our lawmakers other than public opinion.

 

Is this what we should expect from the IL Legislature going forward?

 

Again, this is not a test. SB 1596 is here and will be signed into law. This unprecedented and unneeded legislation amends the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act to allow employees to directly sue their employers in uncapped civil proceedings for a “latent injury.” In effect, this shocking IL WC Act amendment subjects Illinois employers to unlimited liability in tort for their employees’ “latent injury” claims. It may also happen in a fashion that may render Illinois employers uninsured for potentially thousands of expensive and unpredictable claims. In Gene’s view, this legislation is being quietly driven by ITLA or the Illinois Trial Lawyers Ass’n who may make zillions in new fees while destroying jobs and the Illinois marketplace.

 

Yes, You Heard Us Right—There Will Be No Insurance for Billions of Dollars in Old and New Unprecedented IL Workplace Exposures

 

As veteran defense lawyers, we want our readers to know this legislation will unwittingly strip Illinois employers of any insurance coverage for these types of massive claims due to common CGL policy and workers’ compensation policy exclusions. And the only thing lying in the way of this bill is the newly minted Governor: in our view, it’s here and he’ll sign it soon with no care for the consequences.

 

Why does this matter to all of our readers in the insurance, claims, engineering, construction, manufacturing and other related industries? Well… this started in a claim denied by the IL Supreme Court in a case named Folta v. Ferro Engineering. ITLA is trying to reverse that outcome, now what they dominate our State legislature. When the Gov signs it, this legislation will effectively bankrupt your business quickly or over time. In our view, it makes absolutely no sense to push this legislative agenda in Illinois, unless the goal is removing all construction, engineering, manufacturing and other businesses from the State—we hope that cannot be the goal of Illinois Democrats. Foresight is like hindsight, but proper foresight in such matters in pushing individual legislative agendas against IL employers. That’s because ultimately there needs to be money to defend, manage and pay these types of claims. That money either comes in baskets from IL employers or from their insurance carriers. If the employer or their carriers go broke in paying likely expensive “latent injuries,” then there will be no money left for Claimants.

 

The Amendment Ignores and Strips Away the Logic of the Exclusive Remedy Provision of the Illinois Work Comp Act and the Workers OccDisease Act.

As currently written, these WC/OD Acts impose liability without fault upon employers and, in return, prohibit expensive and explosive common law suits by employees against their employers. The exclusive remedy provision was part of both Acts’ “grand bargain” of the sacrifices and gains of employees and employers. In effect, employers assumed no fault liability to their employees, while being relieved of the prospect of large and unpredictable damage verdicts.

 

Perhaps the Illinois legislature and the newly minted Governor believe that where there’s a will, there’s a way. In other words, they may believe insurance companies will adjust and provide endorsements for these types of claims. However, those types of endorsements will be enormously cost prohibitive—if insurance companies will even offer them. The reason is that such claims likely will result in severe injuries and deaths, especially in asbestos exposure (and ultimately the development of mesothelioma) or other similar types of “latent injuries.” Either way, call your broker and seek answers.

 

Additionally, these types of claims can be difficult to defend given the timing of them—they present symptoms and damages decades after exposures. And then there’s difficulty of locating the particular culprit that might have caused the disease or deleterious condition. Years and years of experts have developed theories, such as the “single exposure” theory. The theory means one single exposure to a “latent injury” pathogen or other mechanism can proximately cause the disease.

 

Make no mistake, these types of legislative exposures are an affront to keeping Illinois manufacturing, construction, health care and other types of major businesses in Illinois. 

 

What’s a latent injury? ‘Latent’ is defined in Merriam-Webster’s as present and capable of emerging or developing but not now visible, obvious, active or symptomatic. Okay! It should be easy to determine what employers now face if this bill passes, right? Wrong! Some of the potential types of exposures and other injuries that are latent would be:

 

  • Chemical Sensitivity;

  • Asbestos

  • Radiation;

  • Pesticides;

  • Solvents;

  • Electromagnetic Fields Antidepressant Drugs Ephedra and PPA;

  • Blood Products (HIV/Hepatitis) Diethylstilbestrom;

  • Toxic Playgrounds;

  • Muscoskelital (lower back pain);

  • Allergies;

  • Skin Cancer;

  • Obesity;

  • Gun Liability;

  • GM Foods;

  • Long term hearing loss from work noise-industrial deafness;

  • Silicone exposure;

  • Lead paint exposure;

  • Acoustic shock; or

  • Repetitive trauma claims.

 

There are many other possibilities, but these are some of the major areas we would expect to be contemplated by the legislative acolytes at the Illinois Trial Lawyers Association.

 

SB 1596 amends the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act. It outlines that recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision. It also provides that, as to any such injury or occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action in Circuit Court against any employer or employers. 

 

If the latent injury discussion remained in the workers’ compensation arena, then perhaps this would not be as big of a deal. This is where this type of claim against employers should properly be. Nonetheless, that is not what this new legislation mandates. Instead, it’s another attempt by the Illinois Trial Lawyers Association to circumvent the IL Workers’ Compensation Act to keep having Plaintiff lawyers get richer and richer. Ultimately, this will not protect individuals, because the money will dry up quickly. And if there’s no way to pay claims, then there’s no money for injured persons that truly need it.

 

This type of legislation not only would force Illinois businesses out but would eventually kill those businesses by whatever prior connection they had to Illinois from decades past. This will likely lead to business dissolutions and/or bankruptcies.

 

Perhaps an alternative the legislature could debate would be extending the twenty-five-year repose period under the Acts. Because not being insured is not good for employees either. And when this legislation signed by the Governor, then say bye to insurance for latent injuries to employees. Instead, employers will come to find they have no coverage for a latent injury suit by an employee, which could potentially rise to the level of a wrongful death claim—meaning multi-million-dollar judgments. Ultimately, these bills do not even aid in injured workers viable recoveries, which completely defeats their purpose.

 

We’ll continue to apprise you of the progress of the implementation of this detrimental new law. Once this is signed, it will become effective immediately per the designation in the passed bill, unless an amendment occurs. This means the law as drafted may not even allow for time for an adjustment.

 

One thing you should immediately do is to contact your insurance brokers to seek out newly implemented insurance declarations to deal with these types of newly evolving claims. Currently, there is no insurance applicable to these types of claims and our readers could be sitting with potentially bankrupting latent injuries just waiting to arrive at your doorstep. The problem is a portion of these latent injuries will be left uninsured and that cannot be remedied by new insurance declarations. This is a problem that everyone will have to deal with.

 

The research and writing of this article was performed by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D. Bradley can be reached with any questions regarding employment law and commercial general liability defense at bsmith@keefe-law.com.

 

 

Synopsis: Michael B. Goldberg and Jim DeMunno Rest in Peace.

 

Editor’s comment: The world of Illinois Work Comp mourns the passing of two leading lights of this industry.

 

On behalf of the defense team at Keefe, Campbell, Biery & Associates, we regretfully advise of the passing of long-time WCLA member, Michael B. Goldberg.  Michael passed peacefully in his sleep after a very long battle with pancreatic cancer.  Michael was surrounded by his family at his home in Florida.  Our sincere condolences go out to the Goldberg family.  Michael B. Goldberg was a senior partner and founder of the law firm now known as Goldberg Weisman Cairo (GWC). Founded in 1977, GWC has grown into one of the largest personal Injury and worker’s compensation law firms in Illinois.

 

We also have to advise James “Jimmy” Francis DeMunno, 83, of Cary, passed away peacefully on St. Paddy’s Day, March 17, 2019. James was a proud veteran of United States Army, where he served during the Korean War. He graduated and earned his JD from DePaul University, College of Law. James was an attorney for 40 years and served as a State Appellate Court judge for 8 of those years. Most of all, he loved being with his family and attending his kids and grandkids sporting events.

 

In lieu of flowers, donations may be made to JourneyCare Foundation, 2050 Claire Ct., Glenview, IL 60025.

3-12-2019; Not All Injuries in the Workplace Are Covered Under WC; IL WC Claims Dwindle--Will the New Tax Cause Fewer and Fewer Claims?; Rate the IL WC Arbitrators

Synopsis: Not All Injuries Occurring in the Workplace Are Covered Under Workers’ Comp—Thoughts from the Bard--Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Editor’s comment: Mr. Robinson and the team at Larson’s published some amazing thoughts that I consider to be a must-read for anyone managing U.S. work comp claims. If you want the equivalent of the Bible on U.S. Work Comp, subscribe to Larson’s.

 

Mr. Robinson confirms there are important developments in workers’ compensation law as reported in the latest release of Larson’s Workers’ Compensation Law, which is scheduled to ship to customers this June. To subscribe to Larson’s Workers’ Compensation Law, go here.

 

Positional versus Neutral Risks

 

Chapters 4-9 of the Larson Treatise discuss the sorts of risks faced by a given claimant who contends his/her injury arose out of the employment. Generally speaking, those risks fall within three broad categories:

 

1. Risks distinctly associated with the employment,

2. Risks personal to the claimant, and

3. “Neutral” risks—i.e., risks having no particular employment or personal character.

 

Harms from the first—risks distinctly associated with employment--are universally compensable.

 

Those from the second—risks personal to Claimant--are universally non-compensable.

 

It is within the third category that most controversy in modern workers’ compensation law occurs. Chapter 7 of the Larson Treatise, which treats positional and neutral risks, has been updated and revised.

 

An increasing number of courts across the U.S. make awards whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. A few frankly state that causal connection is sufficiently established whenever it brings claimant to the position where he or she is injured.

 

In some states, unexplained falls and deaths occurring in the course of employment are generally held compensable, sometimes on the strength of a presumption, either judicial or statutory, that injury or death occurring in the course of employment also arises out of the employment in the absence of evidence to the contrary. For example, in Griego v. LaSalle, 2018 N.M. App. LEXIS 62 (Oct. 16, 2018), the New Mexico court, citing the Larson’s Treatise, held that a workers' compensation judge erred in denying a worker compensation under N.M. Stat. Ann. § 52-1-9 (1973) because, while the worker apparently tripped over his own foot, causing him to fall and injure his arm, the facts demonstrated that the worker's injury was the result of an unexplained fall, which constituted a neutral risk that gave rise to a rebuttable presumption that the injury arose out of the worker's employment, and the employer/insurer failed to rebut the presumption with evidence that the worker had any preexisting conditions or infirmities that caused or contributed to his fall—risks that were personal to him [see Larson’s Workers’ Compensation Law, Ch. 7, § 7.04[1][a] Digest n. 2].

 

Risks Personal to the Employee

 

Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. This core issue, discussed in Chapter 9 of the Larson Treatise, has also been updated. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma. In one recent case, Bluml v. Dee Jay's Inc., 2018 Iowa Sup. LEXIS 101 (Nov. 16, 2018), in a divided decision, the Supreme Court of Iowa adopted the minority American rule that all work-related risk factors must be considered in determining the compensability of an idiopathic fall. Citing the Treatise, the court held that the hardness of the floor should be considered in a worker’s idiopathic fall to a level ceramic tile floor, depending upon the facts of the particular case. Accordingly, the majority of the Court reversed a decision of a state district court that (along with the deputy commissioner and the commissioner) had concluded, as a matter of law, that idiopathic falls onto level floors were not compensable [see Larson’s Workers’ Compensation Law, Ch. 9, § 9.01[4][e] n. 54].

 

Nature and Scope of the Exclusiveness Principle

 

At the utter core of workers’ compensation law is the principle that the compensation remedy is exclusive of all other remedies by the employee or the employee’s dependents against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. This discussion, found in Chapter 100, has been updated and revised. Generally speaking, if it does not, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, an action for damages is barred even although the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering. Some of the most interesting cases occur within this area of law. In Baiguen v. Harrah's Las Vegas, 426 P.3d 586 (Nev. 2018), for example, the Supreme Court of Nevada reversed a decision of the state’s court of appeals, holding that a Las Vegas casino employee could not maintain a civil action against his employer to recover damages for its alleged delay in seeking medical treatment following his suffering of a stroke just prior to the beginning of his work shift. His tort action was barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act [see Larson’s Workers’ Compensation Law, Ch. 100, § 100.01[1] Digest n. 2].

 

For the equivalent of the Bible on U.S. work comp law, there is no better source than Tom Robinson or the Larson’s Treatise. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Will a Graduated IL State Income Tax Cause Even Fewer IL WC Claims?

 

Editor’s comment: I am saddened to read our new Governor is committed to enacting a constitutional amendment for the purpose of imposing a graduated income tax. The top tax rate was announced at 7.95% which is comically high when one considers there are any number of states that have no income tax at all.

 

I want my readers to note IL WC claims continue to drop in number, jobs and businesses leave our state. At one point not so long ago, 75,000 new IL WC claims were being filed each year. Now, the IL WC Commission’s annual report confirms:

 

  • In Fiscal Year 2013   42,543 New IL WC Claims were filed

  • In Fiscal Year 2014   43,742 New Claims

  • In Fiscal Year 2015   42,758 New Claims

  • In Fiscal Year 2016   41,777 New Claims

  • In Fiscal Year 2017    39,840 New Claims

 

Notice a trend? No one in Springfield is talking about creating new opportunities for private industry or bringing in jobs—all we hear is how to make government bigger and more expensive while hitting Illinoisans with the highest combined tax burden in the entire country. We have skyrocketing real estate taxes, sales taxes and soon-to-be income taxes.

 

What is bad about high income taxes? Well, please note Chicago Cubs star hurler Jon Lester will be paying $1.6M in IL income taxes each year under the new Pritzker graduated income tax plan—If Lester would pitching for the Miami Marlins or the Tampa Bay Rays, he would make the same money and not pay any state income tax. What we are sure to see is star professional athletes seeing this math and not wanting to play for the Chicago Bears, Bulls, Blackhawks, Cubs and White Sox. Some folks say high taxes in Canada is a reason there hasn’t been a Canadian team to win a Stanley Cup in more than two decades!

 

What also galls me is the fact our Governor and Legislature are more than happy to amend the IL Constitution to raise these staggering new taxes without ever considering altering the Constitution to take out the “Pension Clause” that is the real reason our State government is broke—unfundable fake government pensions. As I have said many times in the past—they should enact a new constitutional amendment that ends the “something for nothing” aspect of fake government pensions and requires gov’t pensioners to receive NO MORE than

 

  • Their pension contributions during service,

  • Whatever the State matches during service and

  • Any investment income accrued at any time.

This simple concept would end the rip-off of taxpayers who work hard and shouldn’t have to pay for government pensioners to NOT work but still receive double, triple or quadruple what they made while actually working for us. If you aren’t sure current Governor Pritzker and the IL Legislature are again “kicking the can down the hill” in funding these fake pensions. This will insure your grandkids and great-grandkids and their great-great-grandkids will be paying off the spiraling fake gov’t pension debt.

 

In the interim, Illinois is certain to keep losing jobs and WC claims will continue to dwindle. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: Rate The IL WC Arbitrators

Editor’s comment: Please find below the link to the IL WC Arbitrator Evaluation Survey. Arbitrators are to be rated only on the basis of personal knowledge. It is possible that you will not be able to rate all of the arbitrators or answer all of the questions for each arbitrator on the evaluation form.

If you have specific knowledge as to the qualifications of an arbitrator to give a fair, informed opinion as to those qualifications, please respond to the questions for that arbitrator by answering “Y” (Yes) or “N” (No) to the questions asked. If you have no opinion on a particular question, the question should not be answered and will be tabulated as a “No Opinion” response that will not affect the arbitrators rating. Specific instructions on form completion and submittal are available on the link.

If you do not have specific knowledge as to the qualifications of an arbitrator please skip that arbitrator and move on to the next arbitrator. Forms must be submitted to the Commission by April 22, 2019.

https://www2.illinois.gov/sites/iwcc/resources/Documents/2019ArbitratorEvaluationForm.pdf

 

Synopsis: Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629

 

Synopsis: Not All Injuries Occurring in the Workplace Are Covered Under Workers’ Comp—Thoughts from the Bard--Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Editor’s comment: Mr. Robinson and the team at Larson’s published some amazing thoughts that I consider to be a must-read for anyone managing U.S. work comp claims. If you want the equivalent of the Bible on U.S. Work Comp, subscribe to Larson’s.

 

Mr. Robinson confirms there are important developments in workers’ compensation law as reported in the latest release of Larson’s Workers’ Compensation Law, which is scheduled to ship to customers this June. To subscribe to Larson’s Workers’ Compensation Law, go here.

 

Positional versus Neutral Risks

 

Chapters 4-9 of the Larson Treatise discuss the sorts of risks faced by a given claimant who contends his/her injury arose out of the employment. Generally speaking, those risks fall within three broad categories:

 

1. Risks distinctly associated with the employment,

2. Risks personal to the claimant, and

3. “Neutral” risks—i.e., risks having no particular employment or personal character.

 

Harms from the first—risks distinctly associated with employment--are universally compensable.

 

Those from the second—risks personal to Claimant--are universally non-compensable.

 

It is within the third category that most controversy in modern workers’ compensation law occurs. Chapter 7 of the Larson Treatise, which treats positional and neutral risks, has been updated and revised.

 

An increasing number of courts across the U.S. make awards whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. A few frankly state that causal connection is sufficiently established whenever it brings claimant to the position where he or she is injured.

 

In some states, unexplained falls and deaths occurring in the course of employment are generally held compensable, sometimes on the strength of a presumption, either judicial or statutory, that injury or death occurring in the course of employment also arises out of the employment in the absence of evidence to the contrary. For example, in Griego v. LaSalle, 2018 N.M. App. LEXIS 62 (Oct. 16, 2018), the New Mexico court, citing the Larson’s Treatise, held that a workers' compensation judge erred in denying a worker compensation under N.M. Stat. Ann. § 52-1-9 (1973) because, while the worker apparently tripped over his own foot, causing him to fall and injure his arm, the facts demonstrated that the worker's injury was the result of an unexplained fall, which constituted a neutral risk that gave rise to a rebuttable presumption that the injury arose out of the worker's employment, and the employer/insurer failed to rebut the presumption with evidence that the worker had any preexisting conditions or infirmities that caused or contributed to his fall—risks that were personal to him [see Larson’s Workers’ Compensation Law, Ch. 7, § 7.04[1][a] Digest n. 2].

 

Risks Personal to the Employee

 

Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. This core issue, discussed in Chapter 9 of the Larson Treatise, has also been updated. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma. In one recent case, Bluml v. Dee Jay's Inc., 2018 Iowa Sup. LEXIS 101 (Nov. 16, 2018), in a divided decision, the Supreme Court of Iowa adopted the minority American rule that all work-related risk factors must be considered in determining the compensability of an idiopathic fall. Citing the Treatise, the court held that the hardness of the floor should be considered in a worker’s idiopathic fall to a level ceramic tile floor, depending upon the facts of the particular case. Accordingly, the majority of the Court reversed a decision of a state district court that (along with the deputy commissioner and the commissioner) had concluded, as a matter of law, that idiopathic falls onto level floors were not compensable [see Larson’s Workers’ Compensation Law, Ch. 9, § 9.01[4][e] n. 54].

 

Nature and Scope of the Exclusiveness Principle

 

At the utter core of workers’ compensation law is the principle that the compensation remedy is exclusive of all other remedies by the employee or the employee’s dependents against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. This discussion, found in Chapter 100, has been updated and revised. Generally speaking, if it does not, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, an action for damages is barred even although the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering. Some of the most interesting cases occur within this area of law. In Baiguen v. Harrah's Las Vegas, 426 P.3d 586 (Nev. 2018), for example, the Supreme Court of Nevada reversed a decision of the state’s court of appeals, holding that a Las Vegas casino employee could not maintain a civil action against his employer to recover damages for its alleged delay in seeking medical treatment following his suffering of a stroke just prior to the beginning of his work shift. His tort action was barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act [see Larson’s Workers’ Compensation Law, Ch. 100, § 100.01[1] Digest n. 2].

 

For the equivalent of the Bible on U.S. work comp law, there is no better source than Tom Robinson or the Larson’s Treatise. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Will a Graduated IL State Income Tax Cause Even Fewer IL WC Claims?

 

Editor’s comment: I am saddened to read our new Governor is committed to enacting a constitutional amendment for the purpose of imposing a graduated income tax. The top tax rate was announced at 7.95% which is comically high when one considers there are any number of states that have no income tax at all.

 

I want my readers to note IL WC claims continue to drop in number, jobs and businesses leave our state. At one point not so long ago, 75,000 new IL WC claims were being filed each year. Now, the IL WC Commission’s annual report confirms:

 

  • In Fiscal Year 2013   42,543 New IL WC Claims were filed

  • In Fiscal Year 2014   43,742 New Claims

  • In Fiscal Year 2015   42,758 New Claims

  • In Fiscal Year 2016   41,777 New Claims

  • In Fiscal Year 2017    39,840 New Claims

 

Notice a trend? No one in Springfield is talking about creating new opportunities for private industry or bringing in jobs—all we hear is how to make government bigger and more expensive while hitting Illinoisans with the highest combined tax burden in the entire country. We have skyrocketing real estate taxes, sales taxes and soon-to-be income taxes.

 

What is bad about high income taxes? Well, please note Chicago Cubs star hurler Jon Lester will be paying $1.6M in IL income taxes each year under the new Pritzker graduated income tax plan—If Lester would pitching for the Miami Marlins or the Tampa Bay Rays, he would make the same money and not pay any state income tax. What we are sure to see is star professional athletes seeing this math and not wanting to play for the Chicago Bears, Bulls, Blackhawks, Cubs and White Sox. Some folks say high taxes in Canada is a reason there hasn’t been a Canadian team to win a Stanley Cup in more than two decades!

 

What also galls me is the fact our Governor and Legislature are more than happy to amend the IL Constitution to raise these staggering new taxes without ever considering altering the Constitution to take out the “Pension Clause” that is the real reason our State government is broke—unfundable fake government pensions. As I have said many times in the past—they should enact a new constitutional amendment that ends the “something for nothing” aspect of fake government pensions and requires gov’t pensioners to receive NO MORE than

 

  • Their pension contributions during service,

  • Whatever the State matches during service and

  • Any investment income accrued at any time.

This simple concept would end the rip-off of taxpayers who work hard and shouldn’t have to pay for government pensioners to NOT work but still receive double, triple or quadruple what they made while actually working for us. If you aren’t sure current Governor Pritzker and the IL Legislature are again “kicking the can down the hill” in funding these fake pensions. This will insure your grandkids and great-grandkids and their great-great-grandkids will be paying off the spiraling fake gov’t pension debt.

 

In the interim, Illinois is certain to keep losing jobs and WC claims will continue to dwindle. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: Rate The IL WC Arbitrators

Editor’s comment: Please find below the link to the IL WC Arbitrator Evaluation Survey. Arbitrators are to be rated only on the basis of personal knowledge. It is possible that you will not be able to rate all of the arbitrators or answer all of the questions for each arbitrator on the evaluation form.

If you have specific knowledge as to the qualifications of an arbitrator to give a fair, informed opinion as to those qualifications, please respond to the questions for that arbitrator by answering “Y” (Yes) or “N” (No) to the questions asked. If you have no opinion on a particular question, the question should not be answered and will be tabulated as a “No Opinion” response that will not affect the arbitrators rating. Specific instructions on form completion and submittal are available on the link.

If you do not have specific knowledge as to the qualifications of an arbitrator please skip that arbitrator and move on to the next arbitrator. Forms must be submitted to the Commission by April 22, 2019.

https://www2.illinois.gov/sites/iwcc/resources/Documents/2019ArbitratorEvaluationForm.pdf

 

Synopsis: Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629

 

3-4-2019; Alert!!! Open Up the Floodgates with Shocking New Statutory Exposure That is a Certain Business-Killer for Illinois; "Must Read" IL Appellate Ruling on Maintenance and Wage Loss Claims

Synopsis: Open up the Floodgates! And Now the Town is Gone… Illinois Legislature Proposes a Statutory Exception to the IL Workers Compensation Act With Uncapped Liability for “Latent Injuries.” Analysis by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D.

 

Editor's Comment: Please note our nutty State is in a very odd political situation—we are a “one-party State.” In short, there is literally nothing the Republicans in Springfield can do other than to let the voters know what is happening and then see if public opinion will sway the dominant Democratic party. IL Democrats have super-majorities in both the IL Senate and House and our Governor is also Democrat.

 

We learned both Houses of the Illinois legislature recently proposed two identical bills in the House and Senate: House Bill 2479 and Senate Bill 1596. This unprecedented and unneeded prospective legislation amends the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act to allow employees to directly sue their employers in civil proceedings for a latent injury. In effect, this shocking IL WC Act amendment subjects Illinois employers to unlimited liability in tort for their employees’ “latent injury” claims. It may also happen in a fashion that may render Illinois employers uninsured for potentially thousands of expensive and unpredictable claims. In Gene’s view, this legislation is being quietly driven by ITLA or the Illinois Trial Lawyers Ass’n who may make zillions in new fees while destroying jobs and the Illinois marketplace.

 

Yes, You Heard Us Right—There Will Be No Insurance for Billions of Dollars in Old and New Unprecedented IL Workplace Exposures

 

As veteran defense lawyers, we want our readers to know this legislation, if passed, almost certainly will unwittingly strip Illinois employers of any insurance coverage for these types of massive claims due to common CGL policy and workers’ compensation policy exclusions. One of the bills is being called to a Senate Judiciary Committee hearing tomorrow, Tuesday, March 5, 2019.

 

Why does this matter to all of our readers in the insurance, claims and other related industries? Well… This legislation, if it becomes law, could effectively bankrupt your business quickly or over time. In our view, it makes absolutely no sense to push this legislative agenda in Illinois, unless the goal is removing all manufacturing and other businesses from the state—we hope that cannot be the goal of Illinois Democrats. Foresight is like hindsight, but proper foresight matters in pushing individual legislative agendas against IL employers. That’s because ultimately there needs to be money to defend, manage and pay these types of claims. That money either comes from IL employers or from their insurance carriers. If the employer goes broke in paying likely expensive “latent injuries,” then there will be no money left for Claimants.

 

The Proposed Amendment Ignores and Strips Away the Logic of the Exclusive Remedy Provision of the Illinois Work Comp Act and the Workers OccDisease Act.

 

As currently written, these WC/OD Acts impose liability without fault upon employers and, in return, prohibit expensive and explosive common law suits by employees against their employers. The exclusive remedy provision was part of both Acts’ “grand bargain” of the sacrifices and gains of employees and employers. In effect, employers assumed no fault liability to their employees, while being relieved of the prospect of large and unpredictable damage verdicts.

 

Perhaps the Illinois legislature and the newly minted Governor believe that where there’s a will, there’s a way. In other words, they may believe insurance companies will adjust and provide endorsements for these types of claims. However, those types of endorsements will be enormously cost prohibitive—if insurance companies will even offer them. The reason is that such claims likely will result in severe injuries and deaths, especially in asbestos exposure (and ultimately the development of mesothelioma) or other similar types of “latent injuries.”

 

Additionally, these types of claims can be difficult to defend given the timing of them—they present symptoms and damages decades after exposures. And then there’s difficulty of locating the particular culprit that might have caused the disease or deleterious condition. Years and years of experts have developed theories, such as the “single exposure” theory. The theory means one single exposure to a “latent injury” pathogen or other mechanism can proximately cause the disease.

 

Make no mistake, these types of legislative exposures are an affront to keeping Illinois manufacturing, construction, health care and other types of major businesses in Illinois. 

 

What’s a latent injury? ‘Latent’ is defined in Merriam-Webster’s as present and capable of emerging or developing but not now visible, obvious, active or symptomatic. Okay! It should be easy to determine what employers now face if this bill passes, right? Wrong! Some of the potential types of exposures and other injuries that are latent would be:

 

  • Chemical Sensitivity;

  • Asbestos

  • Radiation;

  • Pesticides;

  • Solvents;

  • Electromagnetic Fields Antidepressant Drugs Ephedra and PPA;

  • Blood Products (HIV/Hepatitis) Diethylstilbestrom;

  • Toxic Playgrounds;

  • Muscoskelital (lower back pain);

  • Allergies;

  • Skin Cancer;

  • Obesity;

  • Gun Liability;

  • GM Foods;

  • Long term hearing loss from work noise-industrial deafness;

  • Silicone exposure;

  • Lead paint exposure;

  • Acoustic shock; or

  • Repetitive trauma claims.

 

There are many other possibilities, but these are some of the major areas we would expect to be contemplated by the legislative acolytes at the Illinois Trial Lawyers Association.

 

House Bill 2479 and Senate Bill 1596 amend the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act. They provide specified current Sections limiting recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision. It also provides that, as to any such injury or occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action in Circuit Court against any employer or employers. 

 

If the latent injury discussion remained in the workers’ compensation arena, then perhaps this would not be as big of a deal. This is where this type of claim against employers should properly be. Nonetheless, that is not what this new legislation mandates. Instead, it’s another attempt by the Illinois Trial Lawyers Association to circumvent the IL Workers’ Compensation Act to keep having Plaintiff lawyers get richer and richer. Ultimately, this will not protect individuals, because the money will dry up quickly. And if there’s no way to pay claims, then there’s no money for injured persons that truly need it.

 

This type of legislation not only would force Illinois businesses out but would eventually kill those businesses by whatever prior connection they had to Illinois from decades past. This will likely lead to business dissolutions and/or bankruptcies.

 

Perhaps an alternative the legislature could debate would be extending the twenty-five-year repose period under the Acts. Because not being insured is not good for employees either. And if this legislation is passed and signed by the Governor, then say bye to insurance for latent injuries to employees. Instead, employers will come to find they have no coverage for a latent injury suit by an employee, which could potentially rise to the level of a wrongful death claim—meaning multi-million-dollar judgments. Ultimately, these bills do not even aid in injured workers viable recoveries, which completely defeats their purpose.

 

We’ll continue to apprise our readers of the progress of these short-sighted bills. 

 

The research and writing of this article was performed by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D. Bradley can be reached with any questions regarding employment law and commercial general liability defense at bsmith@keefe-law.com.

 

 

Synopsis: Claimant Loses Claim for Wage Loss Due to Non-Cooperation with Voc and No Self-Directed Job Search. This Ruling is a “Must-Read” for IL WC Attorneys on Both Sides.

Editor’s comment: I feel this is a solid and fair Appellate Court decision clearly defining the evidence needed to support a claim for “maintenance” benefits and when Claimants can seek IL WC wage loss benefits.

 

In Euclid Beverage v. Illinois Workers' Compensation Comm'n, (Issued February 25, 2019), our IL WC Appellate Court denied wage loss benefits to an injured beverage distributor whom it ruled did not seek job rehabilitation services in light of diminished abilities following a back injury that aggravated his degenerative condition.

 

Claimant was working in the beverage distribution business for over 30 years and for Respondent Euclid Beverage LLC at the time he injured his back stocking a cooler at a grocery store in 2011. This injury that led to multiple doctors diagnosing and treating him for an injury aggravated a condition common with age. In 2011 Respondent initially terminated his employment because he could not be accommodated even with light duty. Three months later, a manager at Respondent offered him a position in the warehouse, managing people and not lifting anything. Claimant declined to interview for the job, which the hiring manager later testified did not rely on lifting or other physical work—it was purely management.

 

Two months later, in 2012, a doctor released Claimant to work with restrictions: not lifting more than 15 pounds and alternating between sitting and standing. Petitioner subsequently filed for WC benefits, which the employer accepted as compensable.

 

The Arbitrator heard the facts and found him eligible for temporary total disability from 2011 to 2012, “maintenance” benefits from 2012 to 2015, intending to help supplement his income while he arguably sought employment or training, and wage loss benefits of $434 per week from 2015 for “the duration of his disability.”

 

Respondent filed a review before IL Work Comp Commission, which adopted the Arbitrator’s award in part providing a temporary total disability credit of $713 per week for 22 weeks and then maintenance of $714 for 167 weeks but cut the wage loss award to a “percentage of person as a whole award,” limited to $643 per week for 200 weeks equaling 40% loss of the body as a whole.

 

In 2017, Euclid appealed to the DuPage County Circuit Court, which affirmed the TTD and PPD disability benefits ruling but overturned the award for 167 weeks of maintenance benefits, “finding that the record did not demonstrate that the claimant participated in a vocational rehabilitation program or (a) self-directed job search” between 2012 and 2015. Claimant appealed.

 

The IL Appellate Court ruling generally followed the reasoning of the Circuit Court judge, ruling IL WC law mandates an employer must pay maintenance benefits if an injured worker was or is enrolled in a vocational rehabilitation program.

 

“The claimant never sought or gained employment following termination from Euclid,” the ruling states. “As such, rehabilitation would be neither mandatory nor appropriate because the claimant did not show an intention to return to work, although he was capable.”

The Appellate Court noted the Circuit Court properly set aside the IL WC Commission's decision to award maintenance benefits, finding the record did not show Claimant participated in a vocational rehabilitation program or self-directed job search over a 3-year period, and confirming the Commission's decision to award permanent partial disability (PPD) benefits as a percentage of the person as a whole. Claimant did not show an intention to return to work, although he was capable, and he did not enroll in a vocational rehabilitation program or engage in a job search after his termination. In short, Claimant did not prove a reduction in his earning capacity after his termination.

 

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