October 2025; Unusual and "Scary" Appellate Ruling on Death Claim and much more

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Synopsis: A Truly Unusual and Mildly “Spooky” Claim for The Illinois GL/WC Claims Industry—Was the Death of a Worker From “Free Food” Exclusively Covered Under Work Comp or Was the Passing a Civil Matter?  

Editor’s comment: To some extent, claims such as this are unique to the People’s Republic of Illinois. Suddenly, there are two paths for a claims veteran to review if you are to set reserves with any hope of accuracy. Please also note the new risk involved in allowing food service workers to have “free food” that is typically given to employees when the extra food is unused at the end of the work shift. The same cautions apply to giving workers free lunches or managing extra food that will be discarded if not simply put on display for your troops to gobble at lunch or at the end of their work day.

The family of a line cook who died after eating shellfish after-hours to which he was deathly allergic is entitled to a $4.8 million jury award, the Illinois Appellate Court ruled. Please note the judicial body mentioned is the civil side of our Appellate Court—WC claims are heard by a five-member body that handles WC claims only.

Please also remember this claim may be appealed to and accepted for appeal by the IL Supreme Court. Their ruling may again greatly change this outcome.

Wherever it is finally decided, the facts indicate Decedent Angel Rivas worked at a restaurant where he ate the shellfish in an employer-provided and free “extra vittles” meal. As documented in Rivas v. Benny’s Prime Chophouse, LLC, Luz Rivas, Decedent’s widow filed a workers compensation claim after the 2010 passing of Decedent, which the insurer denied.

You are correct, the civil and WC claim arose in year 2010 and still are pending a decade and a half later—as of right now, the widow may still be awaiting her first nickel in recovery after all is said and done in our courts. Please note the IL WC death claim would have been paying her regular WC checks for the last fifteen years plus regular monthly and additional increases from the IL WC Rate Adjustment Fund.

From my review of the IWCC database, that WC death claim remains pending/disputed and has not been finally decided. To me, this is a clear indication of the power of ITLA and the millionaire Plaintiff bar in this state—obviously the IL Work Comp Commission allowed the claim to endlessly pend rather than decide it with whatever effect that might have on what appears to be potentially a multi-million dollar civil claim.

Please also note the statistics in civil courts—year in and year out, roughly 50% of all jury verdicts are returned as zeroes. in my view, Claimant’s attorney took a strong chance in the path taken.

In 2012 the widow Rivas filed a common law negligence lawsuit, alleging the restaurant was “aware” of her husband’s shellfish allergy—whatever that might mean. I find it impossible to believe restaurant management was aware of the acute and deadly nature of the seafood allergy and encouraged Claimant to play “Russian Roulette” with its extra and free grub. The widow also claimed the employer somehow “failed” to inform Decedent the meal contained shellfish. The widow and her counsel also alleged the restaurant did not “adhere to safety standards” in handling allergens.

The restaurant’s insurer and its plucky house counsel raised three affirmative defenses:

  1. Decedent Rivas’ level of contributory fault exceeded 50%, meaning Ms. Rivas was barred from recovery

  2. Decedent Rivas refused immediate medical care when his coworker offered him an antihistamine after he ate shellfish

  3. The Workers’ Compensation Act provided the exclusive remedy for the widow’s death claim—this affirmative defense was clearly in conflict with the employer and its insurer’s refusal to pay WC death benefits.

A trial court disagreed, awarding

 

  • Widow Rivas and her children $8.1 million.

  • Then reducing total damages by 40% or a total of $4.8M.

  • Prejudgment interest that is still pending.

 

The discount was deemed the percentage of Decedent Rivas’ contributory negligence for not having asked about deadly-to-him shellfish in the food. I believe if contributory negligence had been over 50%, the whole thing would have been denied. For that reason, the choice by Claimant’s counsel to proceed solely and slowly with the almost-endless civil claim was a challenging decision.

 

I want to make my opinion known—if you have a deadly or acute allergy, you have to be on the point to avoid it and protect yourself at all times. While I can and would see how these facts would allow for probably over a million in IL WC Death benefits, it is impossible for me to countenance that Decedent wasn’t the major and possibly sole cause of his unfortunate and unexpected passing. Our best thoughts go to his widow and family.

On appeal in the civil side of our IL Appellate Court, the employer argued the trial court should have granted its motion on its affirmative defense concerning the Workers’ Compensation Act’s exclusive remedy, that the trial court made “a number of errors concerning the admission of evidence and other trial matters,” and that the damages award “was excessive” and Decedent Rivas “was more than 50% at fault for his death.”

The IL appeals court affirmed the lower court ruling, writing the WC exclusive remedy did not apply, as the trial court identified the risk to which Mr. Rivas was exposed was the “risk of injury due to consumption of seafood.” The Illinois courts classify that as a “personal risk” and that his “injuries did not arise out of his employment,” the IL Appellate ruling says.

The IL Appellate Court also wrote the “trial court found that the decedent’s injury did not occur during the course of his employment, as the decedent had completed his work for the day and was eating an optional meal provided by defendant.” As I indicate above, I find that ruling truly unusual and mildly terrifying:

  1. Decedent was at his workplace when all acts arising from employment took place.

  2. Decedent was provided a continued and regular perk of working there—free food!!

  3. If something else, short of his passing had occurred, like choking on free food or slipping on a free banana, I assert 100% of every current IL WC Arbitrator and Commissioner would have found those injuries compensable.

In short, I assume this claim remains pending, awaiting further appeal. I want all my readers to understand the practice of providing free food at shift’s end to workers could cause this huge additional risk and expense. One can only wonder if IL employers who provide any food to your workers should get a signed notification or release from them, indicating they have full responsibility for any medical issues suffered from selecting and eating free or discounted extra food. You might also consider using something like the sign I put above.

 

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PASSING OF PETER AKEMANN

Synopsis: Former Arbitrator Peter Alan Akemann passed away peacefully last month after a three-and-a-half-year battle with cancer. He was preceded in death by his parents and his brother, Thomas.

Editor’s comment: He is survived by his wife, Donna and four children, Nathan (Kelly Eberhardt), Rachel (Ikaika Plunkett), Sarah, and Jacob. Peter was the proud grandfather of nine grandchildren: Noah, Katharine, Lucy, Thomas, Joseph, Mahealani, Kupono, Kekoa, and Malia. He is also survived by his twin brother David, his brothers Ernest and Charles, and his sister Mary VanSlyck.

Peter worked for 18 years as an Arbitrator for the Illinois Industrial Commission, then Workers’ Compensation Commission. I always felt he was a quiet and reasonable hearing officer and was respected by all sides of the IL WC community.

A memorial page is found here.

PASSING OF ATTORNEY JOE LOSS

Synopsis: We report the passing of Joseph J. Loss, age 76, a resident of Lisle, Illinois. He passed away earlier this month. Joe was a practitioner at the IWCC for many years and was well liked and respected by all.

Joe grew up in Melrose Park, attended Illinois State University, where he was a proud founding member of the Theta Rho chapter of the Sigma Nu Fraternity, and graduated before pursuing his Juris Doctor at Northern Illinois University College of Law.

A dedicated and respected legal mind, he served as a senior partner at his law firm for over 35 years. Beyond his professional accomplishments, Joseph was a man of deep faith. His presence was warm, thoughtful, and always full of life.