7-7-14; "Dusty" New Asbestos Ruling Creates End-Run Around Exclusive Remedy Provision; Is It WC Fraud to Own/Operate a Business and Collect TTD?; New Indiana WC Rates from Kevin Boyle, JD and more
/Synopsis: “Dusty” New Illinois OD Appellate Court Ruling May Cause Hundreds of New Asbestos Filings Against Employers.
Editor’s comment: Sometimes we hate to report what is happening in our state because it is so challenging and “activist.” But report we must and we will let the dust fall around us.
Unless The IL Supreme Court Takes This Case and Flips It, the “Mesothelioma Bar” Can Now Sue U.S. Employers With Illinois Operations for Asbestos Exposures to Your Employees!
In Folta v. Ferro Engineering, 2014 IL App (1st), issued June 27, 2014, the IL Appellate Court issued a game-changing ruling involving the exclusive remedy protection offered to employers when their employees become injured or sick due to work. It appears there is a new trend from the troops at the Illinois Trial Lawyers Association or ITLA and the legislators/judges/justices they legally support for election to strip away such protections to allow IL employers or their vendors to be sued in Circuit Court. The most recent legislative change was SB 3287 which now allows for direct actions against “safety consultants” or anyone providing “safety advice” to an employer—prior to June 5, 2014, such folks couldn’t be sued directly and the injured worker received WC benefits only. As we have reported, our legislature changed the law in a fashion we consider counterproductive for both jobs in our state and safety in the IL workplace.
Now it appears our courts are re-writing the law to allow IL and all U.S. employers with Illinois workers to be sued for decades-old asbestos exposures. In the Folta ruling we cite above, the worker may have worked with asbestos products about fifity years ago in the late 1960’s. It appears he contracted mesothelioma in the 1990’s and passed away sometime after 2011. The IL Occupational Diseases Act would traditionally provide whatever benefits he might be due from his employer for exposure to asbestos products at work. There is no question the limitations period for making a claim for an occupational disease arising from exposure to asbestos is crystal-clear. The employee is provided 25 years to make a claim for asbestos-related “injuries” under our law and 3 years for asbestos-related diseases. By the time of the illness and passing of decedent James Folta, any potential occupational disease claim against Ferro Engineering was possibly time barred by the OD Act’s 25-year statute of repose for asbestos-related injuries and the three-year statute of repose for asbestos-related diseases. Thus, instead of filing a workers’ comp claim, Folta filed a direct action against his employer Ferro Engineering and other Defendants who supposedly supplied Ferro Engineering with products or equipment containing asbestos.
There appears to be no question Plaintiff, now decedent James Folta would have been challenged in making a claim for benefits, consistent with the IL OD Act’s requirements. The applicable section of IL law is in Section 1(f) of the OD Act which states:
(f) No compensation shall be payable for or on account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.
820 ILCS 310/1(f). Please note the legislation above does not say the OD Act doesn’t cover exposure to asbestos dust—in our view, it clearly covers the exposure and indicates no benefits/compensation are due from the employer unless the requirements of the law are met. Plaintiff and later his widow had an appropriate period after the last exposure to asbestos dust to get an OD claim on file or they are barred by the simple requirements of the OD Act. In our view, this occupational disease legislation has been kept in the same format it was started with for decades. Either decades ago or right now, the IL legislature could change the law to match current science and understanding of the effects of exposure to asbestos. Our legislature, in its wisdom, did not change the law so, in our view, the reviewing courts are now doing it.
What About the Durand Ruling?
We point out the IL Supreme Court in Durand v. Industrial Commission expaaaaanded the workers’ comp and, by analogy, the OD statute of limitations in Section 6 of the WC/OD Acts. Our highest court ruled the key “cut-off” date was not the date on which the injury and its causal relationship became apparent to a reasonable physician, but when it became plainly apparent to a reasonable employee. The Court stated the WC Commission, in evaluating an accident or manifestation date, should consider many factors, such as the employee’s medical treatment, the severity of the injury, and how the injury affects the employee’s performance.
The problem Plaintiffs in Folta have is they have never made a claim under either the IL WC Act or the IL OD Act. That potential appears to have been lost to Plaintiff’s counsel so the “activist” Appellate Court can’t expaaaaand the statute of limitations or statute of repose for them in a fashion similar to the Durand reasoning. It appears to us this new ruling is new judicial legislation that didn’t or couldn’t consider the earlier judicial legislation.
Where IL WC and OD May Be Going
In our view, confusion and chaos now abound. This ruling appears to state when an injured worker’s claim under the WC or OD Acts is time-barred in a fashion the statute contemplates but the worker or their survivors are consequently blocked from receiving benefits under our laws, the employee can sue their employer in circuit court, and the exclusive remedy provision of those Acts does not bar such a suit. With respect to our Appellate Court, we consider that approach another anti-jobs and anti-business concept.
You might ask “wait a minute—do you mean anyone blocked from receiving benefits by the operation of the limits of the WC or OD legislation can now sue the employer in Circuit Court?” The answer is—no one knows. The Folta court was asked and didn’t answer such questions in their ruling. While we are uncertain about that concept, we are certain hundreds of “asbestos-bar” plaintiff lawyers are sprinting to the courthouse as you read this to add the employer as a party defendant to all pending asbestos lawsuits.
If you aren’t aware, tiny Madison County IL, with a population of about 260,000 has the largest asbestos docket in the U.S. We assure our readers there is a potential for hundreds of new asbestos claims against IL employers—we predict the new filings will be focused there and if you need assistance, the KCB&A team in southern IL can help. Madison County had 752 asbestos exposure claims filed in 2010; 953 asbestos claims filed in 2011 and 1,563 in 2012—those numbers may double or triple but are certain to go up exponentially if this decision stands. As an aside, if every asbestos claim in Madison County were to be set for trial this year, every eligible adult in the county would have to appear as a juror on three to four or more jury trials before year-end.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Full TTD Awarded Despite Admitted Part-time Work at Florist Shop for Nurse—In Many States This Might Be WC Fraud, in IL WC, It May Be Rewarded.
Editor’s comment: What happened to temporary partial disability? In Sunny Hill of Will County, dba Sunny Hill Nursing Home v. IWCC, 2014 IL App 130028WC, filed June 26, 2014, Petitioner had a shoulder problem due to a work-related injury and was receiving care at her employer’s expense. The employer learned she was working at a flower shop she owned while getting full temporary total disability. They sent out surveillance that clearly documented Petitioner was working at her shop.
At the time of the initial injury, Claimant Mahoney-Tapella was a licensed practical nurse at Sunny Hill Nursing Home of Will County. In December 2008 she injured her right shoulder and lower back lowering an obese patient from a patient lift. Ms. Mahoney-Tapella was awarded TTD benefits for three periods between December 2008 and June 2011, and Respondent Sunny Hill terminated her employment in September 2010 because she had been continuously off work for them for more than one year.
Prior to her injury, she opened and operated a flower shop which appears to be called Blossoms and Blooms in Crest Hill, IL with her two daughters. Our research indicates their website is: http://www.blossoms-and-blooms.com/ From their website, it looks like a well-run company and there is an indication it has been in business for over two decades.
Claimant owns a majority stake in the business and her daughters run it with her. Despite working at the flower shop three days each week since getting injured at work in 2008, Ms. Mahoney-Tapella testified she was not “formally employed,” didn’t collect a paycheck, and doesn't follow a regular schedule. When at the flower shop, Ms. Mahoney-Tapella admitted she answered the phone, picked up faxed orders, helped her daughters prepare flower arrangements and babysat her grandchildren. We ask the rhetorical question--what else would someone do in a florist shop?
The arbitrator ruled “it is apparent that (Ms. Mahoney-Tapella's) partial ownership interest in a local flower shop that is operated on a day-to-day basis by her daughters does not constitute a 'return to work' in the sense of disqualifying her from receipt of TTD benefits.”
With respect to this solid and veteran hearing officer, we completely disagree—working disqualifies one from TTD but may still entitle the worker to TPD. There is no dispute Petitioner owns the company and clearly either actively makes money or is entitled to a portion of the profits of the company she owns. The fact her daughters appear to do the heavy lifting and hard work doesn’t mean Claimant isn’t working. Please also note “babysitting” her grandchildren also has value that can be easily ascertained.
In our view, you can’t have it both ways—Illinois WC law was amended in 2005-6 to provide workers with temporary partial disability or TPD. If a given claimant is working for someone else or operating a business they own for profit, the pro rata amount of money they make needs to be used to calculate temporary partial disability. When any other approach is used, it appears to us to take on the veneer of WC fraud. We salute the many attorneys on the other side of the practice who feel a duty to report to the adjuster or Respondent’s counsel when they learn their clients are working in any way and therefore TTD needs to be recalculated as TPD.
We thank the reader who gave us the heads up on this ruling. We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: Important Indiana WC Benefit Changes effective July 1, 2014 with analysis by our Indiana Defense Team Leader, Kevin Boyle, JD.
Effective July 1, 2014, the Indiana Worker’s Compensation benefit rates will increase for the first time in a number of years. You’ll need to update your old charts for injuries that occur after 6/30/14 due to the recent Indiana legislative changes from H.E.A. 1320. Below is a chart to help.
There are also additional planned benefit changes for injuries on and after June 30, 2015 – 2017 as well. If you need those rates, contact Kevin at the email address below or call him at 312.662.9899or 812.369.7182.
Indiana PPI Value Increases
Date of Injury
1 - 10 degrees
11 - 35 degrees
36 - 50 degrees
51 - 100 degrees
7/1/10 - 6/30/14
$1,400
$1,600
$2,700
$3,500
7/1/14 - 6/30/15
$1,517
$1,717
$2,862
$3,687
Indiana Max. Dollars for Weekly Wages: TTD-TPD-PTD and DEATH BENS or any combo of these.
Date of Injury
Maximum Wage
Benefit Rate
Minimum Wage
Maximum Compensation
7/1/09 - 6/30/14
$975
$650
$75
$325,000
7/1/14 - 6/30/15
$1,040
$693.33
$75
$346,666.67
source: http://www.in.gov/wcb/files/ppiweeklybenefits.pdf
This article was researched and written by Kevin Boyle, JD. Kevin is our Indiana Defense Team Leader and is licensed in Indiana, not Illinois. He is available for answers to any questions about general liability, employment law or workers’ comp in Indiana at kboyle@keefe-law.com.