6-20-2016: Important IL Third Party Ruling; EEOC Admits Their Mandated Anti-Harassment Training Doesn't Work!; U.S. Employers Get To Learn From Prior Hiring Mistakes and much more

Synopsis: Third Party Claim for Noggin-Bump Blocked by IL Appellate Court Ruling Due to Prior IWCC Settlement.


Editor’s comment: In Marquez v. Martorina Family and IPSA Corp. (decided June 17, 2016), Claimant was assisting in roof repairs on a commercial building. He got knocked in the noggin by a falling board at a job site in Chicago. It appears he and his attorneys settled the WC claim pretty much on the cheap—he only got $12,500. When his popular Plaintiff attorney sued two of the contractors on the construction job, the Circuit Court judge granted separate motions for summary judgment filed by both Defendants.  


Plaintiff’s four-count amended complaint alleged the building under construction was owned by Martorina Family LLC and IPSA Corp. was the general contractor for the construction work being performed at the building. Plaintiff was employed by Centro Development, Inc. or CENTRO pursuant to an oral agreement entered into between CENTRO and IPSA.


Plaintiff filed a WC claim with the Illinois Workers’ Compensation Commission against CENTRO and in 2012, the WC Commission approved a Settlement Contract signed by Plaintiff, his attorney, and the defense attorney representing CENTRO. The caption of the settlement contract was Marquez as the Employee/Petitioner v. CENTRO DEVELOPMENT AND IPSA CORPORATION/SALVATORE MARTORINA Employer/Respondent.” The settlement contract provided


[a]s a compromise adjustment, to avoid further litigation, Respondent offers and Petitioner [this Plaintiff] agrees to accept the total sum of $12,500.00, representing compensation for 5% loss of use of the person as a whole and disputed medical bills and disputed temporary disability, in full settlement of all claims of any nature arising out of the alleged accident of November 2, 2011, including but not limited to all claims for injuries known and unknown, all claims for additional future temporary total disability, all claims for past or future medical, surgical or hospital treatment. The settlement contract also states that all elements of the claim are disputed, “including the employer/employee relationship” and goes on to provide that “[t]he parties intend that this settlement releases both [CENTRO] and IPSA *** from any and all workers’ compensation liability resulting from the allegations made by the Claimant [this Plaintiff] in relationship to the accident date of November 2, 2011.


After settling with that exhaustive language, in the next year, Plaintiff filed the instant action against Salvatore Martorina, the Martorina Family, LLC, and IPSA Corp. seeking civil damages for injuries sustained working at the building. Plaintiff’s complaint was grounded in allegations of negligence on the part of each of Defendants. Defendant Salvatore Martorina filed a motion to be dismissed as a party Defendant which the Circuit Court granted. Plaintiff did not appeal from that order, and, as a consequence, Salvatore Martorina was not a party to the pending appeal.


A year later, Martorina Family, LLC, filed a motion for summary judgment and, argued the evidentiary material submitted in support of its motion established it did not retain sufficient control over Plaintiff or the work being performed at the building, to support the imposition of any duty of care upon it for Plaintiff’s safety, and, as a consequence, it was entitled to the entry of a judgment in its favor as a matter of law. Thereafter, IPSA Corp. also filed a motion for summary judgment. IPSA Corp. argued, at the time of his injury, Plaintiff was its temporary or borrowed employee, on loan from CENTRO, and, as a result, Plaintiff’s action against it is barred pursuant to section 5(a) of the IL WC Act and the terms of the IWCC-approved lump sum settlement contract.


Plaintiff argued genuine issues of material fact exist on the questions of his status as a borrowed employee of IPSA and whether Martorina Family, LLC, retained sufficient control over the work being performed at the building at the time of his injury to impose upon it a duty of care for his safety under the retained control exception to Section 414 of the Restatement (Second) of Torts § 414.


The Circuit Court judge entered a written memorandum opinion and order, granting both motions for summary judgment. As to Martorina Family, LLC’s motion for summary judgment, the Circuit Court found there are no genuine issues of fact on the questions of whether Martorina Family, LLC, retained control over the work being performed at the building at the time of Plaintiff’s injury, whether it exercised any such control, or whether it had actual or constructive notice of any unsafe condition which resulted in the Plaintiff’s injuries. Consequently, the Circuit Court found the Martorina Family, LLC, owed no duty to Plaintiff upon which liability for his injuries could be predicated. As to IPSA’s motion for summary judgment, the court found, although the evidentiary material on file disclosed a genuine issue of fact on the question of Plaintiff’s actual status as a borrowed employee of IPSA at the time of his injury, Plaintiff is, nevertheless, barred from recovering damages in an action at law against IPSA by reason of his having settled his workers’ compensation claim pursuant to a settlement contract which lists IPSA in the caption as his employer and which, by its terms, releases IPSA from any and all workers’ compensation liability.


Although Plaintiff’s notice of appeal states his counsel was appealing from the Circuit Court’s order granting “Defendants’ Motions for Summary Judgment,” in their brief Counsel for Plaintiff addressed only the propriety of the summary judgment entered in favor of IPSA and did not present any argument addressed to the summary judgment entered in favor of Martorina Family, LLC. As a consequence, any claim of error in the granting of Martorina Family, LLC’s motion for summary judgment was forfeited pursuant to Illinois Supreme Court Rule 341(h)(7) and the unanimous appellate majority, therefore, affirmed summary judgment in favor of Martorina Family, LLC.


In urging reversal of the summary judgment entered in favor of IPSA, Plaintiff argued, because a genuine issue of fact existed on the question of his status as a borrowed employee working for IPSA at the time of his injury, the Circuit Court erred in granting summary judgment in favor of IPSA based upon the exclusive remedy provision of the IL WC Act. Counsel for Plaintiff contended the fact he entered into the settlement contract disposing of his workers’ compensation claim did not act as a bar to his right to recover damages against IPSA in a negligence action if IPSA was not his employer at the time of his injury.


The Appellate Court noted contrary to Plaintiff’s assertion, the Circuit Court did not assume IPSA was his employer. As noted, the Circuit Court specifically found, based upon the evidentiary material before it, a genuine issue of fact exists on the question of the plaintiff’s status as a borrowed employee of IPSA at the time of his injury. Nevertheless, the Circuit Court still found Plaintiff’s negligence action against IPSA was barred under the exclusive remedy provision of the Act by reason of his having entered into the settlement contract resolving his workers’ compensation claim.


If a plaintiff has collected workers’ compensation benefits pursuant to a settlement agreement approved by the Commission, he is precluded from suing for damages in a civil action. If we were faced with a situation in which Plaintiff filed a workers’ compensation action against both CENTRO and IPSA seeking benefits for the injuries he sustained, and subsequently entered into a settlement contract with both, which provided for the payment of benefits pursuant to the Act and that settlement agreement was approved by the Commission, the Court would have no difficulty affirming the summary judgment entered in favor of IPSA predicated upon the exclusive remedy provision of the Act. In such a circumstance, Plaintiff, having sought and received WC benefits under the Act against CENTRO and IPSA on the ground he was injured in the course of his employment and having entered into a lump sum settlement agreement resolving the workers’ compensation claim, would be barred under the doctrines of judicial estoppel and res judicata from adopting a contrary position in a subsequent civil action against IPSA for the same injuries and relitigating his employment status in an attempt to avoid the exclusive remedy provision of the Act.


The Appellate majority found nothing in the record supporting the proposition Plaintiff asserted in the workers’ compensation claim he was injured while acting as an employee of IPSA, and, other than in the caption, the settlement contract did not contain any provision that identified IPSA as Plaintiff’s employer. Consequently, they did not believe the doctrine of judicial estoppel precluded Plaintiff from asserting he was not an employee of IPSA at the time of injury. Further, since the record failed to reflect IPSA was ever made a party to Plaintiff’s workers’ compensation claim, the commonality of parties necessary for the application of the doctrine of res judicata to the position taken by Plaintiff concerning his employment status was absent. Based upon the foregoing analysis, the IL Appellate Court concluded Plaintiff was not precluded from suing IPSA for damages in a civil action by reason of his having settled his workers’ compensation claim. Further, since, as the Circuit Court found, there was a genuine issue of fact on the question of whether Plaintiff was a borrowed employee in the service of IPSA at the time of his injury, they concluded the circuit court erred in granting summary judgment in favor of IPSA.


However, the IL Appellate Court clarified their holding to confirm they held only Plaintiff’s employment status was a disputed issue of fact that has yet to be resolved. If the trier of fact were to determine, at the time of his injury, Plaintiff was a borrowed employee in the service of IPSA, section 5(a) of the Act would stand as a complete bar to his right to recover damages in this action against IPSA.


We strongly agree with this ruling, drafted by Justice Thomas Hoffman, one of Illinois’ top justices. We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: No Evidence EEOC-Mandated Corporate Training Prevents Harassment—So Why Stop Harassing U.S. Businesses With It?


Editor’s comment: What many businesses find out—the hard way—is the EEOC loves to bust your company for harassment that you didn’t even know was happening at one of your work sites. When/if you try to settle the dispute with what some feel is an irritating/overpowering government agency, they mandate you pay thousands of dollars for “training” that may go on for years at high cost to you.


Now, the biggest finding of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) Select Task Force on the Study of Harassment in the Workplace may be what it failed to find—any scientifically significant evidence the past 30 years of forced corporate training has had any effect on preventing workplace harassment. “That was a jaw-dropping moment for us,” said EEOC Commissioner Victoria A. Lipnic in a Sunday Session at the Society for Human Resource Management 2016 Annual Conference & Exposition.


Despite finding no data that harassment training works, EEOC managers continue to advocate HR professionals build on the foundation of their organization’s existing policies. “We’re not suggesting throwing out the old,” Lipnic said. However, “what we want people to understand is that if you are thinking training alone is a panacea to helping out any type of harassment, [it’s not]. It doesn’t work,” she said.   It’s effective to take a holistic approach that starts with getting the buy-in of senior leaders. “For [training] to matter, employees have to feel their leaders are being authentic,” another EEOC manager said. “They have to believe that leaders mean what they say” when they claim to want to stop harassment.


What the EEOC Feels Harassment Is


The EEOC interprets workplace harassment as generally defined to be any unwelcome conduct based on race, color, religion, sex, national origin, age (40 and over), disability or genetic information. It becomes unlawful when employees are forced to endure offensive behavior in order to keep their jobs or when the conduct is severe or pervasive enough to create a hostile work environment.


However, the Select Task Force is focused on thwarting all unwanted behavior based on protected characteristics. “We wanted to take a look beyond just what the law is,” Lipnic said. “Harassment doesn’t have to rise to the level of being pervasive and severe,” she said. “[Our goal] is to stop unwelcome conduct before it rises to the level of legal problem.”


Millions of Your Dollars May Be at Stake—Consider Staying a Step Ahead of Them By Hiring Brad Smith, J.D.


EEOC Managers Lipnic and Feldblum made several recommendations for how HR can help prevent workplace harassment: In 2015 alone, the EEOC recovered $165 million from challenging/contested harassment charges against employers. Citing this information is a powerful way to counter the perception that allowing bad behavior is the price leaders have to pay to retain certain high-level employees.


You may want to consider implementing customized in-house training to stay a step ahead of what the government may demand. To be effective, “you need training that is live, in-person and customized to your workplace,” Lipnic said. “You need someone who understands what your workplace is.”


The Select Task Force recommends two new forms of training intended to cultivate harassment-free workplaces. “What we learned from academics and investigators is that if one does what’s called “workplace civility training”—a very skills-based training on how to be respectful—that can help [employers] avoid harassment on the basis of protected characteristics,” Feldblum said.


Feldblum and Lipnic also suggest something called “bystander intervention training,” in which employees are taught to recognize and report problematic behavior among others when they see it. It is modeled after the “It’s On Us” campaign against sexual violence, in which individuals are asked to sign a pledge indicating they will intervene if they witness a rape or sexual assault in progress.


The Anti-Harassment Trainers at KCB&A Can Help!


Bradley Smith, J.D. and Brittany Pendry, J.D. of KCB&A are happy to assist in modeling your ongoing training to be a step ahead of any EEOC command/demand for training to eliminate harassment in your workplace. They can be reached at bsmith@keefe-law.com or bpendry@keefe-law.com for more details and assistance.


Synopsis: Federal Court of Appeals Finds No Discrimination When an Employer Learns from their Past Hiring Mistakes.

Editor’s Comment: Earlier this month, the 7th Circuit Court of Appeals found the U.S District Court did not err in granting Defendants' motion for summary judgment in a Section 1983 action alleging that Defendants denied Plaintiff’s promotion to a drug inspector position on account of her female gender, where Defendants conducted a background check of Plaintiff, which revealed she had recently filed for bankruptcy and had a relationship with an individual who belonged to a biker gang.

In the case of McCurdy v. Fitts, Candice McCurdy, a patrol deputy with the Williamson County Sheriff’s Department, applied for a job as an inspector with the Southern Illinois Enforcement Group, which investigates drug crimes. She was selected, subject to a background check.

Agent Barbee Braddy, who conducted the check, recommended she not be hired. Braddy discovered McCurdy recently filed for bankruptcy and was in a long-term relationship with an individual, who belonged to a biker gang associated with criminal activity. Braddy thought these facts made McCurdy unsuitable for a more responsible job, particularly given what had happened when the Group hired Caleb Craft. He, too, had been in financial difficulty and had some criminal associates, and he was fired when the Group discovered he was stealing drugs and money from the unit. McCurdy wanted to fill the Craft vacancy but following the adage “once burned twice shy,” the Group decided to look elsewhere.

McCurdy filed suit under 42 U.S.C. §1983, contending the officers who made these decisions engaged in sex discrimination. She offered two theories: first, she would have been promoted immediately had she been a man; second, the Group gave her background and associates more scrutiny than it does for male applicants. She does not deny the Group had legitimate reasons for thinking someone else would be more suitable; instead, she contends the Group would not have discovered these matters had the applicant been male.

The Federal District Court, however, granted summary judgment for Defendants, ruling McCurdy was treated the same as a male applicant would have been.

The Federal Appellate Court found the District Court’s conclusion was well founded with respect to the hiring decision, because Agent Braddy testified in discovery she investigated McCurdy exactly the same way as she investigates other applicants, and she always checks financial details and romantic entanglements. It was noted Braddy investigated Craft and recommended he not be hired because she discovered he had financial problems and associated with people engaged in criminal activities. However the Group overrode her recommendation about Craft, suffered the consequences, and was determined not to make that mistake again.

McCurdy points to Craft as someone who was treated more favorably, but the Seventh Circuit Federal Appellate Court noted employers are entitled to learn from their errors. Given Agent Braddy’s uncontested testimony she investigated McCurdy exactly as she investigates men who apply to be inspectors, and McCurdy’s concession Braddy’s findings constitute sex-neutral reasons for not hiring her, the Federal Appellate Court found summary judgment was proper.

To summarize, Defendants in this matter could properly base their denial of promotion on the fact a prior male individual in the same position had also experienced financial difficulties, had associated with criminal associates and had been fired because he had stolen drugs and money from Defendants' unit. This case allows employers to be entitled to learn from their prior hiring errors when considering current applicants. Employers should always look for potential warning signs when hiring applicants. However, it is important the employer always stays consistent with their searches and treats applicants the same across the board.

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at jkaris@keefe-law.com.


Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond                                    .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the  outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.