3-14-2016; John Campbell Confirms No "Double-Dipping" for WC and GL Claims; Dominicks Winces With Runaway Jury Award in Retaliation Claim; Fighting Hotel Manager Loses Court Fight and much more

Synopsis: No “Double-Dipping” Allowed for Chicago Paramedic Injured in Training. Once Recovery is Enjoyed Under One Remedy; Plaintiff Cannot Recover in a Separate Civil Action. Analysis by John P. Campbell, Jr., J.D.


Editor’s Comment: In Locasto v. The City of Chicago, 2016 IL App (1st) 151369 (issued March 8, 2016) our IL Appellate Court explained how an employee may have a valid civil claim against their employer while also filing a workers’ compensation claim. However, once recovery is enjoyed under either remedy, Petitioner/Plaintiff cannot continue on seeking recovery in the separate legal action.

Petitioner/Plaintiff Locasto was a paramedic trainee for the City of Chicago when he suffered severe dehydration and kidney failure due to rigorous training exercises.

Plaintiff Locasto first filed a civil tort action alleging intentional injuries by his training officers, as agents for the City of Chicago. Veteran observers will note this claim of an intentional injury was carefully chosen by Plaintiff here. Remember, an employee’s civil claim for negligence against an employer would be clearly barred under the exclusive remedy provision of the Workers’ Compensation Act. However, intentional injuries inflicted by an employer create an exception to the exclusive remedy provision of the IL WC Act, therefore allowing a Plaintiff to sue his/her employer for civil damages. This is of course why Locasto chose to allege an intentional injury by the City; he was seeking a way around the exclusive remedy provision of Section 5 of the Workers’ Compensation Act.

While the civil case was pending, Locasto also filed for workers’ compensation benefits and recovered substantial medical benefits, TTD and an award of permanent partial disability under the Workers’ Compensation Act.  Once Locasto recovered benefits under the Workers’ Compensation Act, the City of Chicago moved for summary judgment on the civil action, citing the exclusive remedy provision and also pointing to the “election of remedies doctrine” to argue for dismissal of the civil action, since Locasto had now enjoyed compensation/recovery under the Workers’ Compensation Act. Locasto contended the doctrines of election of remedies and estoppel do not bar his lawsuit, as he was alleging intentional tortious conduct on the part of the City.

However, the Court reasoned that, once the employee actually receives compensation under the Act, this acceptance precludes recovering in the tort case (citing Rhodes, 92 Ill. 2d at 471). “Once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act's provisions. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980).” Therefore, the Court determined that, having applied for and accepted workers' compensation benefits, Locasto was barred from pursuing an intentional tort action against Defendants under the exclusive remedy provision. Therefore, summary judgment was proper.

While dual avenues of recovery do not typically arise in workers’ compensation cases, the Locasto case is an example of how dual actions may be filed to protect a plaintiff’s right to recover, especially where the correct avenue for remedy is uncertain. In this case, there was an early question as to whether Locasto was even entitled to workers’ compensation benefits as a firefighter/paramedic in training. Remember that Chicago firefighters are actually excluded from coverage under the Act. While the Court ultimately determined Locasto, as a  trainee only, was not a “duly appointed member of the fire department” and therefore, not precluded from Workers’ Compensation Act coverage, Locasto could not have known how the Court would rule on the question initially. Therefore, he should have the right to at least file both the civil action and the workers’ compensation claim. However, Locasto and other similar plaintiffs must be mindful that once recovery is enjoyed under the Workers’ Compensation Act, such recovery will compel the dismissal of the related civil claim. Perhaps future petitioner/plaintiffs in these matters will seek to stay their workers’ compensation claim recovery until the related civil matter is concluded, so as to not lose the right to potential civil recovery to the exclusive remedy doctrine once workers’ compensation benefits are paid.

This article was researched and written by John P. Campbell, Jr, J.D. Partner at Keefe, Campbell, Biery & Associates, LLC. To reach John about these or any other legal issues, email jcampbell@keefe-law.com.


Synopsis: Dominicks/Safeway Has Runaway Jury Award Plaintiff Staggering $2.65 Million Verdict on Employment Retaliation Claim Where No Lost Wages Were Awarded!!!

Editor’s comment: In the second of three recent legal developments involving the intricate rights for Claimants with both WC and civil claims, we are sad to report this somewhat shocking decision against a major U.S. employer.

We also feel Dominicks Finer Foods had a triad of poor risk management, inept human resources and overpriced defense counsel for years. It was our opinion their litigated claims would drag on forever. In this situation, we feel they made a staggeringly poor HR, legal or claims decision that clearly came back to bite them.

Last week, we learned a runaway jury provided a single Plaintiff a $2.65 million verdict in a retaliation claim against Dominicks/Safeway Inc. Plaintiff-Petitioner worked for Dominicks Finer Foods, a Safeway subsidiary. IWCC records indicate Claimant filed seven different workers comp claims against the company over the years. Dominick's eventually settled all the WC claims but obviously, they didn’t get a coincidental release/resignation. The defense team at KCB&A always assume we want our clients to get a release/resignation if Claimant is leaving your employ at the same time as their workers’ comp claims close. If you need help or advice in putting a release/resignation into place, please send a reply.

Either way, during the pendency of the WC claims, Dominicks/Safeway requested Claimant submit to an IME or independent medical examination. The IME doctor opined Claimant did not have a work-related injury. Although the IME released Petitioner to MMI and full work immediately with no restrictions, Claimant's personal physician recommended Claimant remain off all work. Claimant followed his treating doctor's advice.

No one at Dominicks Human Resources Department, WC Claims or outside counsel told/notified Claimant if he was going to remain off work in that fashion, he had to call in absent. Duh. The HR department treated the absences as “unexcused” because Claimant didn’t know and didn’t call in. After he had three consecutive “unexcused” absences, Dominick's fired him. During a later WC hearing, an Arbitrator with the Illinois Workers Compensation Commission found Claimant could follow his doctor's advice, and ignore the advice of the IME doctor. The IL WC Commission panel eventually upheld this decision. One has to assume, although we can’t be sure, TTD was awarded by the Arbitrator and Commission panel when Claimant was off work for these “unexcused absences.”

In the meantime, Claimant filed this parallel lawsuit against Dominick’s/Safeway in the Cook County Circuit Court, alleging the company fired him in retaliation for seeking work comp benefits. Dominicks/Safeway maintained Claimant was terminated for “legitimate, non-discriminatory reasons,” as he violated its goofy attendance policy in not calling in or showing up for work when the IME reliance by Dominicks mystically required him know about it and do so. Again, the legal controversy arose because he didn’t know and wasn’t told to call in.

Claimant sued for damages due to this HR determination to terminate him based on “no call, no show” and the lack of notice of the need to call in. A Cook County trial judge found Dominick’s kooky change in absence coding was inappropriate. The judge further ruled Dominicks discriminated against Claimant as a matter of law by terminating him while Claimant’s comp claim was still pending.

The Illinois Appellate Court reversed the trial court’s grant of summary judgment and sent the matter back for trial on the question of whether Claimant’s termination was causally related to his exercise of his rights under the Workers' Compensation Act. The Appellate Court specifically found the employer had improperly relied upon the opinions of the respective IME physician in its decision to change the employment and call-in status of the employee. However, the Court further found the employees nevertheless had the burden of establishing all elements of their causes of action in order to seek recovery under the tort of retaliatory discharge. Although the Appellate Court ultimately decided it was wrong for the employer to terminate the employees under its attendance policy based solely upon the IME opinions and the lack of notice of the need to call in, it refused to rule such action would per se cause the employer to be liable for retaliatory discharge and remanded the cases for consideration by the jury.

Why Do We Say It Was A “Runaway” Jury? Well--Where are the Lost Wages???

The employer in this instance failed to communicate directly to each employee their classification status under the attendance policy was changed. Thus, neither employee was on notice that they were required to call in their absences on a daily basis, as the policy required. It is clear an employer who terminates an employee under similar circumstances places itself at significant risk. However, the first and most important part of damages in any retaliation claim is lost wages. Many Plaintiff firms won’t even consider a retaliation claim without substantial lost wages.

The problem with lost wages is the IL WC Commission can and should have awarded TTD during all periods of lost time—that makes it hard for a jury to award anything. And from what we can tell, the WC claims were compromised and settled some time ago, certainly long before this jury verdict.

What just happened is a Cook County jury found in favor of Claimant and awarded Claimant $31,315.50 in medical bills (?), $75,000 for past emotional distress, $50,000 for future emotional and/or psychological damages, and a whopping $2.5 million in punitive damages. In the absence of any lost wages, we consider that award to be shocking and unfounded. Please note this ruling is diametrically the academic opposite of the Locasto ruling reviewed by John Campbell above—in that claim, resolution of the WC claim ended any claim for alleged intentional injuries by the employer. It also makes little sense to us how Claimant could have unpaid medical bills that he could seek as damages in the common law action but were left unpaid in the WC settlements. We also don’t understand how the WC resolution of lost time would still allow Claimant to have such damages for “retaliatory discharge” in the Circuit Court.

While we agree the actions of Dominicks/Safeway weren’t brilliant, the idea of awarding someone who didn’t have any lost time as monetary damages all those punitive damages is hard to comprehend. Understanding we are in one of the most liberal jurisdictions in the U.S. and maybe the world, we don’t feel there is any chance of remittitur or an Appellate Court knocking that award out.

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Synopsis: If Your Employees Provoke or Participate In a Fight and Get Injured, It Isn’t Retaliation to Fire Them.

Editor’s comment: Last week, the federal Sixth Circuit Court of Appeals ruled an employer did not retaliate against an employee for having filed a workers' compensation claim due to injuries on the job. The Federal Appellate Court ruled the employer fired her for violating numerous work rules and provoking the physical altercation that led to various injuries.

Video cameras captured the verbal and physical exchange between a manager at the InTown Suites in Louisville, Kentucky, and a patron who came into the hotel lobby to complain about a vending machine malfunction. The man claimed he pressed the button for soda, but the machine gave him a bottle of water.

InTown hired the manager in 2010, and she claims she received glowing performance reviews during two years with the hotel. While at work on Nov. 19, 2012, a man entered the hotel lobby seeking a refund for a beverage he purchased from a vending machine outside the property. The man said he was not a hotel guest, but a resident of the apartment complex nearby. After the manager told him the machine was for guests only, the man made an inaudible reply that was apparently offensive. The manager then demanded he leave.

Shortly thereafter, the manager and patron began arguing, and the manager said “bye” sarcastically and made an exaggerated waving gesture as the man turned to leave. The manager repeated this gesture twice as the man was walking away before he turned and began yelling at her once more. The manager confronted him and responded by basically daring him to come across the front desk and engage her. After the man knocked a computer screen on the front desk to the ground, the manager called for her trainee to summon the police. She also came out from behind the front desk and went to the lobby door, blocking the patron from exiting. The man tried to get past her and out the door, but the manager positioned her body to prevent the door from opening. When the patron pushed the manager aside, she charged back toward him, swinging and clawing at his face. The man threw the manager to the floor, kicked her twice, then fled.

The manager was injured and then sought medical treatment for her face and hands, and she also informed InTown Suites upper management of the incident.

InTown’s general counsel and its chief executive officer viewed the security footage two days later, the day before the Thanksgiving holiday. They discussed the video with two other executives, and everyone agreed to place the manager on administrative leave until after the holiday. On the following Monday, the injured manager called InTown’s employee benefits department to inquire about filing a workers' compensation claim. That same day, the four executives who had placed the manager on leave reconvened and unanimously decided to terminate her.

Along with bringing a work comp claim, the manager filed a retaliatory discharge claim against InTown in a Kentucky state court, seeking more than $1 million in damages. InTown Suites quickly removed the case to federal court based on the parties’ diverse citizenship, and it then filed a motion for summary judgment.

U.S. District Court Judge David J. Hale granted the motion and noted "[the former manager] has no direct proof of a causal connection between her requested workers’ compensation and the decision to terminate her." And the federal judge said he believed no reasonable jury would deny that InTown had sufficient reason for firing the former manager after watching the security camera video.

Plaintiff appealed. Her attorneys told the 6th Circuit Appellate Court "this case has been a literal and figurative kick to the face" for Plaintiff. They emphasized the video footage established the patron was a "trespasser," and he was the one to escalate the situation, first by insulting the manager, then by turning the fight physical. Although the manager obviously engaged the man, her attorneys insisted she "was not the aggressor and acted only to defend herself and InTown’s facility from a violent and verbally abusive trespasser." They further took issue with the trial judge's acceptance of the testimony from InTown's executives insisting the decision to terminate Plaintiff had nothing to do with her pursuit of work comp benefits. Plaintiff’s attorneys contended the federal trial judge treated the content of this testimony as "undisputed fact," and improperly placed the burden on Plaintiff to rebut it. They also said it was "difficult to conceive of how [the former manager] could directly rebut it" because she was not present when the InTown executives made the decision to terminate her and those meetings were not recorded.

The 6th Circuit Court of Appeals was not persuaded. Although Kentucky's statutory scheme protects a worker from adverse employment actions taken in retaliation for pursuing a legitimate workers' compensation claim, the federal appeals court said Plaintiff’s claim failed as a matter of law. Even if it were to assume Plaintiff had a valid claim, the federal appeals court said, "she cannot show that InTown’s explanations for discharging her—supported by the video—amounted to pretext." The Court ruled the fact that InTown's executives knew Plaintiff had a workers’ compensation claim at the time they decided to fire her did not mean they discharged her because of that claim. And the brief delay in the company making its decision to fire her also did not create an inference of retaliation.

"Companies need not rashly discharge an employee at the first sign of trouble to prove the sincerity of their motives, and InTown’s minimal delay does nothing to undermine its explanation for firing [the former manager]," the federal appeals court said.

To read the court's decision, click here. If you have thoughts or comments, feel free to post them on our award-winning blog.