8-7-2020; Ottawa IL Appellate Court Dramatically Changes Liability/WC Law for IL Staffing Industry; Gov. Pritzker Appoints Two New Pro-Labor Arbitrators and more

Synopsis: Must Read for All IL Staffing Companies!! Ottawa Appellate Court Dramatically Changes Liability/WC Law for IL Staffing Industry. Research and Analysis by Lindsay Vanderford, J.D.

Editor’s Comment: In a split 2-1 Decision, the 3d District Appellate Court decided an appeal from the Circuit Court’s grant of dismissal of a common law or general liability lawsuit in favor of a worker attempting to sidestep the plain meaning of the IL WC Act in Jaime Quintana v. Ferrara Candy Company, Appeal No. 3-19-0414, Circuit No. 17-L-890.

In a split decision, the Third District Illinois appeals panel comprised of Justices McDade, Wright, and Holdridge held a temporary worker, injured while working at a Ferrara Candy plant, may be able to avoid the exclusivity provision of the IL WC Act and bring a WC claim and also sue his temporary employer in Circuit Court if a finder of fact decides he is not a “borrowed employee.” Ferrara filed a Motion to Dismiss, arguing that legal relationship was clear, and the negligence suit filed by Quintana directly violated the exclusivity provision of Section 5 of the IL WC Act. Justice McDade penned the majority decision which asserts, “the existence of that relationship is not so clear to an average worker … that the question should be taken from the finder of fact and resolved by the court as a matter of law.”

Pertinent facts of the underlying suit are that Quintana was employed by Elite Staffing, the agency which assigned him to work at the Ferrara plant. On November 11, 2015, Quintana was injured when wooden pallets from a forklift operated by a Ferrara employee fell on him. On October 12, 2017, Quintana filed a complaint against Ferrara, alleging negligent training or supervision of the forklift operator.

Ferrara moved to dismiss, contending that under the Illinois Workers’ Compensation Act, Quintana was a “borrowed employee” and was barred from suing his “borrowing employer.” As we are all aware, the Act limits borrowed employees, precluding them as a matter of law from maintaining civil actions against their borrowing employers. The “exclusive” vehicle for remedy against a borrowing employer is to seek workers’ compensation for any employment-related injuries.

Quintana argued the borrowed employee relationship did not exist because he signed a waiver, prepared by Ferrara and given to all assigned employees, disclaiming any direct employee-employer relationship with Ferrara Candy. The waiver stated, “I agree that I am solely an employee of staffing firm and that I am eligible only for such benefits as Staffing Firm may offer to me as its employee. I further understand and agree that I am not eligible for or entitled to participate in or make any claim upon any benefit plan, policy or practice offered by Ferrara.”

Please note we do not feel that waiver language is well-drafted and consider it confusing. If you are using such a waiver, we strongly suggest you reply or contact Lindsday Vanderford or the defense team at KCB&A if you want better or more appropriate language for such a waiver.

At the lower level, Circuit Judge Raymond Rossi agreed with Ferrara that Quintana’s status as a borrowed employee was clear, dismissing the case. We thoroughly support Judge Rossi’s seasoned opinion noting his lengthy tenure in Will County’s Twelfth Judicial Circuit Court.

Quintana appealed, and Justice McDade reconsidered the borrowing employer issue noting a two-prong inquiry was required to determine whether a borrowed-employee relationship was created. The first prong,

(1)  whether the alleged borrowing employer had the right to direct and control the manner in which the employee performed the work, she found to have been established.

(2)  The second prong, whether there was an express or implied contract of hire between the employee and the alleged borrowing employer, she found muddled by the wording of the benefits waiver and Quintana’s understanding of same.

McDade noted the waiver referred to “any benefit plan, policy or practice offered by Ferrara,” with “policy or practice” potentially understood by Quintana to mean Ferrara was not offering him employment and thus not “offering” workers’ compensation. Notably, and as pointed out by the dissent, eligibility for benefits under the IL WC Act is determined by law and isn’t an option. Any right to those benefits cannot be validly waived by an employee pre-accident.

Despite that clarity of the law, Justice McDade questioned whether Claimant Quintana knew or should have known that, despite the seemingly definitive contrary language of the waiver he signed, he had nonetheless entered an employer-employee relationship with Ferrara. Though McDade admits Quintana had entered the relationship, the decision concludes, “The majority finding is that the existence of that relationship is not so clear to an average worker reading that specific waiver language that the question should be taken from the finder of fact and resolved by the court as a matter of law.” Justice Wright signed on.

Justice Holdridge who is a veteran and knowledgeable WC appellate court member, dissented arguing a plain reading of the waiver reveals it to limit Quintana’s eligibility solely for internal employee benefit plans. He disagreed with the majority’s suggestion the waiver is open to a second interpretation, that Ferrara was somehow attempting to decline Quintana workers’ compensation coverage, calling that interpretation “contrary to law” and a stretch.

In pertinent part, Holdridge noted, “Workers’ compensation is not some type of elective program that an employer may voluntarily offer at its discretion — it is statutorily required by state law. Therefore, I fail to see how workers’ compensation is encompassed within this language and was waived by Quintana.” He further commented, “the majority’s second interpretation strains to find an ambiguity where none exists, is unreasonable, and leads to an absurd result.”

Notably, this decision was filed under Supreme Court Rule 23 and may not be currently cited as precedent by any party except in very limited circumstances. We find this lack of precedent favorable and agree with Justice Holdridge’s sentiments regarding its absurdity. In the absence of any further appeal, we trust the finder of fact will consider the evidence and determine Petitioner was clearly a borrowed employee and subject to the limitations of the IL WC Act as is any other worker.

This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with any questions related to workers’ compensation defense and employment law defense at lvanderford@keefe-law.com.

Synopsis: Gov. Pritzker Announces Two Plaintiff Attorneys Appointed to Arbitrator Positions at the IWCC.

Editor’s comment: Illinois has the odd spectacle of having a billionaire Governor who is wholly pro-labor. We assume his slant will continue and hope our State and its economy will survive him. That said, we are certain both of these appointments are solid attorneys, highly professional and know the IL WC Act inside and out.

Governor JB Pritzker announced the following appointments in his administration:

Jeanne AuBuchon will serve as Arbitrator on the Workers’ Compensation Commission.* AuBuchon is a Plaintiff personal injury and criminal defense attorney at AuBuchon Law, LLC. AuBuchon is a member of the American Bar Association, Illinois State Bar Association, St. Clair County Bar Association, East St. Louis Bar Association, National Association of Counsel for Children, and Land of Lincoln Legal Assistance Foundation Pro Bono Bar. She sits on the Board of Directors for the Lansdowne Community Initiative and is a Precinct Committeewoman for Sugar Loaf Township in St. Clair County. She earned her Bachelor’s in Journalism from University of Missouri-Columbia and Juris Doctorate from St. Louis University School of Law.
 
Gerald Napleton will serve as Arbitrator on the Workers’ Compensation Commission.* Napleton is Associate Attorney at Ridge & Downes, PC where he handles prosecution of worker’s compensation and personal injury matters for injured clients. Napleton is a member of the Illinois State Bar Association, where he serves as Chair of the Workers Compensation Section and served as Chairperson of the Young Lawyers Division in 2016. He is also a member of the Illinois Bar Foundation, where he served as Board Member in 2017 and Fellow from 2015 to present. Napleton is also the President of the Marist High School Law Association and Bagpiper with the Shannon Rovers Irish Pipe Band. Napleton earned a Bachelor of Business Administration (Management), Bachelor of Arts (Philosophy) from Saint Xavier University and Juris Doctorate from DePaul University College of Law. 
 
* Appointments pending confirmation by the Illinois Senate.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com