4-21-2014; Do We Really Need "Magic Hook" Legislation to Make Safe Workplaces Harder to Achieve?; Putting Away Reflective Triangles is an "Emergency" in IL; Important ADA Ruling of Note and much more

Synopsis: Let No Good Deed by Our Courts Go Unpunished--Another Unnecessary Attack on IL Business from Our Legislature.

Background: In the 2012 ruling by the First District Appellate Court in Mockbee v. Humphrey Manlift Company, Inc. Case No. 1-09-3189, decided May. 18, 2012, Plaintiffs Brenda Mockbee and spouse Michael Merle Mockbee brought a negligence action against Defendants Harris Industries and R. Harris Electric (collectively Harris) and Humphrey Manlift Company after Ms. Mockbee was severely injured in 2002 when she fell into a floor opening that was part of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked. Use of the manlift was optional for all Quaker Oats employees; stairs between the floors of the plant were nearby and could have been used.

On June 6, 2002, Brenda Mockbee suffered severe injuries when she fell into the first floor opening of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked as an ingredient handler. The severe injuries rendered Ms. Mockbee a paraplegic. There was no guardrail at this floor opening of the manlift. Our research indicates all medical and lost time benefits were accepted and the estate settled the workers’ comp claim with this major Illinois employer for $200,000 in a settlement approved by the Arbitrator assigned in September 2013.

In this third party ruling, Plaintiffs sought to reverse the Circuit Court's grant of summary judgment to Defendants Harris and Humphrey. Plaintiffs contended Harris and Humphrey were safety inspectors of the manlift platform system and owed Ms. Mockbee an independent duty of care and arguably breached that duty when their respective inspections failed to note the need for a safety guardrail required by the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 (2006).

The Appellate Court affirmed the grant of summary judgment to Harris and Humphrey, but on the ground that both are immune from liability for injuries sustained by Quaker Oats’ employee Mockbee under section 5(a) of the IL WC Act as providers of safety services to the employer. Basically, the legal ruling puts a safety engineer or inspector into the shoes of the employer and provides protection from a third-party action.

“Magic Hook” Legislation May Create a Cottage Industry of New Third Party Claims

Our legislature, spurred by ITLA, is seeking to overturn this concept via SB 3287. The immediate impact of this legislation is the elimination of the workers’ compensation exclusive remedy/immunity enjoyed by service companies that provide safety consulting unless those companies are wholly-owned by the employer, insurance broker or the insurer. If you don’t understand, if this bill passes, it will create a cottage industry of new litigation for any significant injury in the workplace. While the employer only has to pay IL generous workers’ comp benefits, any safety consultant or inspector will be required to have what we call a “magic hook” or a method to insure no one ever gets hurt because if anyone gets mildly to seriously hurt, the safety consultant is certain to get sued. If the “magic hook” fails and someone falls or otherwise gets injured, wasn’t it their job to globally insure no one ever gets hurt? Massive liability for safety engineers/consultants will be unavoidable and ever-present.

Why is this a poor idea? Well, workplace safety should be everyone’s goal and IL business has made great strides, prompted in part by OSHA, the IWCC and WC costs. Right now, Illinois’ injury rate is 16% lower than the national median. From the Illinois Workers’ Compensation Commission 2012 Annual Report:

Accidents continue to decline. From the FY95 peak of 72,000 cases, fewer than 47,000 were filed in FY12, a 35% decrease. The overall injury rate in Illinois is lower than most states, and the injury rate has declined dramatically over the years: the 2009 injury rate is 64% lower than in 1990.

Do We Really Want to Make It Harder or Impossible for IL Employers to Hire Safety Consultants?

SB 3287 is going to make it much more challenging for IL employers, large and small to hire safety consultants and inspectors because those service providers will have dramatically higher exposure for any injury. Please note the third party exposure for the Mockbee claim listed above could easily be $30-60 million. Trust us, the members of the IL Trial Lawyers Assn. are pushing your legislators to guarantee those monster paydays. For that reason, SB 3287 will have an immediate and dramatically negative effect on retention of safety engineers, resulting in decreased workplace safety, exposing more workers to injury. If Illinois workplaces are getting safer, why jeopardize that continued improvement?  

Small employers especially will be adversely impacted. This is because smaller IL employers typically cannot afford a full-time safety professional on staff to address safety issues. Employers with 5-300 employees use outside consulting firms which provide expertise to help keep their business in compliance with OSHA standards and limit workers’ compensation exposure to employee injury. As we indicate above, this approach is working very well. If you make outside safety consulting exponentially higher in cost, employers aren’t going to want to use them and may not be able to afford them, even if they want to use them.

Please further note erosion of the exclusive remedy provision will only create more expensive litigation and higher costs for Illinois employers—this means increased costs for both private employers and governments across our state.  The liability exposure will immediately increase liability insurance costs for safety consultants and inspectors. Those increased expenses will be passed onto employers and taxpayers. In turn, these dramatically increased costs will be passed along to consumers, making IL even less competitive.

The attorneys and staff at KCB&A join with the IL State Chamber and many other groups in opposing this unnecessary legislation. We thank the reader who provided information leading to this article. We urge our readers to join the IL Chamber and get more information on their website at www.ilchamber.org.

We appreciate your thoughts and comments. Please post them on our award-winning blog.


Synopsis: Why Illinois is Soooo Bankrupt—“Lifetime Pay” for Government Workers Plus WC Benefits Plus Lifetime Family Healthcare Coverage.

Editor’s comment: We bet the average IL citizen doesn’t understand what a mess our State of IL and City of Chicago governments are in. The combined pension debts of these government bodies are over $140 billion, yes billion dollars. Despite that giant debt, we already have the second highest property taxes in the country and an income tax that is already at 5% with our legislators trying to find lots of ways to justify even higher taxation. We are starting to become concerned some of our older leaders are becoming senile when you read the contradictions and craziness coming from Springfield.

In a recent ruling in Pedersen v. Village of Hoffman Estates, we saw another example of how challenging it is for taxpayers to understand where their money is going. Former Firefighter Pedersen had hearing issues and used hearing aids. He went to a fire on the expressway and put the fire out in the company of other firefighters. The fire was over and the crew was cleaning up and preparing to leave. Another firefighter mistakenly turned on the siren on the truck. It appears Pedersen wasn’t able to cover his ears in time and suffered more hearing loss. Despite the fact he can currently work and make money in lots of jobs, to the extent his hearing issues preclude him from being a firefighter, the taxpayers of Hoffman Estates now have to pay him for the rest of his life as if he is completely disabled from all work. Our legislature could change this “lifetime pay” concept today but we assure you there is no chance they will do so.

On top of the “lifetime pay” he is currently receiving, our research indicates former Firefighter Pedersen also received workers’ comp benefits of 11% BAW and about 42% loss of use of the left ear and about 30% loss of use of the right ear. This was a “going-away-present” of about $70,000.

Sounds like a pretty good deal, huh? Lifetime pay with the ability to also work at any job(s) you can find plus $70K? Well, why stop there? In Illinois, if a firefighter can demonstrate their injuries were the result of a "response to what is reasonably believed to be an emergency," they are also entitled to full lifetime family health care group health coverage. If you aren’t sure the additional cost to the taxpayers of Hoffman Estates is probably in the range of $25K per year and that amount is going to continue to rise.

Please note the Village determined the firefighter wasn’t in the act of responding to an emergency. We strongly agree with that determination—the fire was out! They were cleaning up after the fire and putting things away. There was no reason for the siren that arguably caused injury—all parties agree it was set off by mistake. The Circuit Court affirmed denial of family group health benefits.

In a somewhat shocking turn of events, the unanimous IL Appellate Court found the determination by the Village and the Circuit Court was “clearly erroneous” and there was no question the injury occurred in response to an emergency. You may note the dictionary defines “emergency” as an “unexpected and usually dangerous situation that calls for immediate action.” At the time of this unfortunate event, Claimant Pedersen was returning reflective triangles to their storage place. We don’t consider that a clear and immediate emergency but in Illinois, it would appear that it is. It seems a lot more justified for taxpayers to pay the extra money for group family lifetime coverage for a firefighter injured while actively tangling with a fire, explosion or pulling children out of a burning building. How do you equate that heroic work with putting shiny triangles back into a truck?

So along with:

·         The thousands of IL and Chicago government workers receiving total and permanent disability awards with hefty COLA increases that could be ended today by using voc rehab and job placement to return the workers to other government or private jobs;

·         The firefighters and police officers now being paid for life when they are also working and making lots of money in other jobs;

·         Along with the hundreds of thousands of former government workers currently receiving what some call pensions or what we call “lifetime pay” being paid out of our current tax dollars

you start to see why this state is in the dire financial mess that it is.

If you would like the website of the ruling above, send an email. We appreciate your thoughts and comments. Please post them on our award-winning blog.


Synopsis: Dealing with ADA—The Burden May Be on the Worker to Show Existence of Another Position.

Editor’s comment: After the Americans with Disabilities Act Amendments Act of 2008 and the recent legislative changes that hit U.S. employers where prior defenses to ADA were arguably stripped by the Feds, lots of employers in the public and private sector have struggled with the best approach to dealing with this challenging law. Most HR and other managers want to get people to work with reasonable accommodation but they also want to make money in their businesses or be effective government managers. It appears the new battlefield may be over whether the worker can demonstrate you have a position that will “reasonably accommodate” their disability but also it appears they have to be able to safely perform the “essential job functions” of a job you have available.

In Perez v. Transformer Manufacturers, Inc., the Federal District Court dealt with a “wire-winder” from Norridge, IL who developed hand issues with resulting work restrictions. There was no question the worker could not perform the prior position.

The Court further noted the employee failed to show there was another position to which his employer reasonably could have assigned him following his alleged on-the-job accident or disability. Thus, because the employee was admittedly unable to perform at least some essential functions of his previous job after his on-the-job accident, his ADA discrimination claim for failure to accommodate was not viable. The Federal Court rule the employer was not required to “manufacture a job that will enable the disabled worker to work despite his disability.” The Court also noted “an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.” The employer “need only transfer the employee to a position for which the employee is otherwise qualified.”

The record indicates the employee never asked to be reassigned to another position within the company. Also, Plaintiff Perez merely referred to injured workers who were placed in vacant light-duty positions at some time in the past, without presenting anything to show comparable vacant positions were available at the time he was injured. Further, even if there had been such vacancies, he offered nothing to show he was capable of performing the essential functions of those positions.

The defense team at KCB&A has a number of veteran trial attorneys who can consult or assist you with ADA issues and avoid litigation. If you need assistance, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.