1-19-2022; IL Lawyer Sues Self and Loses!; Joe D'Amato on IWCC Changes; God Bless Martin Luther King, Jr. and more

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Synopsis: IL Lawyer Sues Himself and Loses!

 

Editor’s comment: Well, there is an unusual claim for all risk managers and claims handlers to consider. We saw an unusual case from Illinois in which Marvin Brustin, an 81-year-old attorney and the president of Brustin & Lundblad, Ltd. He is one of the top Plaintiff personal injury lawyers in the U.S. He was licensed to practice law while Jack Kennedy was president way back in November 1961!

 

A little over 10 years back, in October 2011, Attorney Brustin sustained shoulder injuries at a bus stop. Falls at bus stops would usually happen on the way “going to or coming from” work and would not typically be expected to be WC covered. Attorney Brustin contended his disabling event was different. The record indicates Attorney Brustin, who is still running his law firm, worked a number of hours each week from home, but also scheduled meetings with clients and others at his law firm’s offices in Chicago.

 

On the day of his injuries, Brustin had a scheduled 10:00 a.m. appointment with a client at the office, but he received a somewhat frantic call from the office manager just before 8:00 a.m. that day, indicating the client was present at the office and waiting for him. The client was the business agent of a local labor union and a large source of business for Attorney Brustin’s firm. Brustin contended his firm had a rule that important clients, like this labor union agent, were not to be kept waiting. Accordingly, Brustin got dressed in a rush and walked briskly to his bus stop. While watching for the southbound bus, Mr. Brustin tripped on the edge of a sidewalk slab and fell hard on his left shoulder, suffering what later would be diagnosed as a torn rotator cuff.

 

In July 2014, he filed a workers’ compensation claim against himself as owner and also against his firm, contending he was an “on-call employee,” and he was engaged in important work for the firm at the time of the injuries, and alleged he was entitled to WC benefits. His firm’s insurance carrier controverted the claim and disputed/defended, relying on the “going and coming” rule. The rule isn’t in our IL WC Act but longstanding WC judicial rulings find Injuries during an ordinary commute are not compensable.

The IWCC panel denied the claim and the Circuit Court affirmed the denial.

The IL WC Appellate Court reviewed the various exceptions to the going and coming rule, including

 

  • the “usual access route,” employees who are actively engaged in work while en route,

 

  • on-call employees,

 

  • the “special mission” rule, and

 

  • the IL WC rule for “traveling employees.”

 

The Court discounted Brustin’s argument that since he met with clients at his residence and had a law library in his home, that it constituted a separate premises (generally speaking, travel between two premises of the employer is not considered a commute). The Appellate Court further observed that ordinarily a “traveling employee” is an employee whose work requires the employee to travel away from the employer’s office. Those facts did not fit Brustin’s scenario, indicated the court. His injuries occurred during a routine and regular commute and where, therefore, not compensable.

 

The claim is one of those odd IL WC “published-non-published” rulings in Brustin v. Illinois Workers’ Comp. Comm’n, https://www.leagle.com/decision/inilco20210828270. It is required reading on any going to and coming from claim.

I want my readers to know Attorney Brustin is a solid advocate for his clients and has several multi-million dollar awards/settlements to his credit. He just lost this one claim but has been successful in hundreds of others.

 

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Synopsis: IWCC Makes Changes to Status Call & Pre-Trial Conference Procedures. Research and writing by Joseph D’Amato, J.D.

 

Editor’s comment: The IWCC should be commended for rapidly moving monthly status calls (or “dockets” for those of you south of I-80) online over Cisco’s WebEx system in response to the COVID 19 pandemic. These “virtual” dockets have ensured the safety of lawyers, claimants, and hearing officers. While the IWCC’s modernization efforts are welcome, it should be noted the policies are changing “on the fly” in response to participant feedback.

 

We want our readers to be aware of the following new status call procedures:

 

  • The first available pre-trial hearing date after the status call shall now be reserved for Respondents objecting to a Petitioner’s request for the continuance of a Redline matter, i.e., a claim filed more than three years prior

  • The second available pre-trial hearing date after the status call shall now be reserved for emergency petitions, otherwise known as 19(b)/8(a) petitions and

  • The remainder of the pre-trial hearing dates shall be reserved for non-redline and non-emergency cases.

The IWCC has also increased the number of pre-trial hearing dates at what have traditionally been smaller venues to accommodate these changes. The Quincy docket previously had one pre-trial date and there are now two. The Urbana previously had two pre-trial dates and those have been doubled to four. Springfield, a moderate-sized docket, previously had four pre-trial dates and there are now six.

 

We applaud the IWCC’s continued commitment to modernization, safety, and willingness to consider the feedback of the litigants appearing before it.

 

This article was researched and written by Joseph F. D’Amato, Esq. You can contact Joe for questions or comments at jdamato@keefe-law.com

 

Synopsis: We Salute the Great Martin Luther King, Jr. Who Gave His Life to Help Our Country.

 

Editor’s comment: As his birthday is near mine, I always think of this great statesman and orator this. He gave one of the greatest speeches of the history of this planet—“Let Freedom Ring.” I listen to it every year in January and hope our country continues to make progress to stop and forever end all vestiges of racism. I despise the terms “white” and “black” but I understand why “Black Lives Matter.” Some day, I hope we end the stupidity of racism to understand we are one “race”—the Human Race.

 

 

Synopsis: Last time—don’t forget to update your reserves with the new IL minimum wage.

Editor’s comment: Claims Handlers/Risk Managers/Attorneys on both sides--Don’t forget about the January 1 Minimum Wage Increase For Workers In IL But Outside Chicago. Chicago already has a minimum wage of $15 per hour at major employers and $14 per hour for small/mid-sized workers.

Outside Chicago, Illinois employers face another increase in the minimum wage. On January 1, 2022 the IL minimum wage, for companies outside Chicago, rises to $12-per-hour, and will continue to increase one dollar per hour on January 1 of each year until it hits $15-per-hour on Jan. 1, 2025.

Please note this change is IL law. It isn’t pending signature by the Governor—it is the law right now and moving forward. I don’t feel Arbitrators can ignore the law, as enacted. In my view, the change directly impacts reserves and awards/settlements for IL WC wage loss and “loss of trade” claims. Happy to explain.