9-12-16 Worker Can't Sue Employer for Failing to Get Higher UIM Coverage; Brittany Pendry on Discrimination Deadline Ruling; IL County Board Members Can No Longer Be GPP's!! and much more

Synopsis: IL Employers Can’t Be Sued by Injured Employee/Driver for Low Limit Uninsured Motor Vehicle Coverage.

Editor’s comment: The Illinois Appellate Court recently ruled an injured van driver could not maintain a civil action against his employer due to the employer's failure to maintain underinsured motorist coverage with a high enough limit to afford him additional compensation for an on-the-job car accident. Although SCR Medical Transportation allegedly had a contractual obligation to maintain a UIM policy with a $1 million limit, the intermediate appellate court said their injured SCR employee could not sue the company for damages after SCR reduced its UIM coverage.

In James v. SCR Medical Transportation, No. 1-15-0358, the IL Appellate Court reasoned Plaintiff James' complaint wasn't SCR's failure to maintain $1 million in coverage breached the terms of a contract. Instead, the majority decision noted "what James is suing over is SCR’s failure to have and maintain $1 million in UIM coverage with which to compensate him for his injuries." Accordingly, the Court concluded James' suit was barred by the exclusive remedy provision of the Illinois Workers' Compensation Act. The case was

James had worked for SCR, a provider of non-emergency paratransit service serving Wisconsin, Illinois and Indiana. SCR secured a contract with the Pace Bus, the local transit authority for Chicago's suburbs, in the fall of 2008. When Pace Bus solicited bids for the contract, their RFP required interested vendors to have insurance coverage with a limit of $1 million for automobile liability, underinsured motorist and uninsured motorist coverage claims. When it made the bid and got the deal, SCR undisputedly had the required levels of coverage for its fleet of 236 vans but 14 months later, it changed insurance carriers. The new policy SCR obtained from the Empire Fire and Marine Insurance Co. in October 2009 had UIM and UM coverage limits of $50,000.

In March 2010, James suffered arguably serious and permanent injuries in a work-related car accident. He filed a work comp claim against SCR and received $8,026 in temporary total disability benefits from SCR before settling his work comp claim for a lump sum of $20,582. Plaintiff James also collected the $50,000 limit from the auto liability insurance carrier for the other motorist involved. We cannot tell if the employer recovered its WC lien. If you need help with recovering/monitoring WC liens, KCB&A knows this very well, send a reply.

Plaintiff James  then requested additional payment under Empire's UIM coverage to SCR. Empire responded its liability was $50,000 and Empire owed him nothing more. In response, James filed suit against SCR, Pace and Empire, asserting they owed him $1 million in UIM coverage pursuant to the terms of the contract between Pace and SCR.

SCR responded to assert Pace Bus approved the reduction in UIM coverage limits, although Pace could not confirm this. The Pace Bus employee who allegedly gave oral authorization for the reduction of SCR's coverage limits died before James filed suit, and Pace has no written records regarding SCR's reduction in UIM coverage limits.

In considering these facts, the Appellate Court confirmed Section 5 of the Illinois Workers' Compensation Act bars a worker from maintaining a civil suit against his employer for the injuries covered by the Act.. While Plaintiff James argued he was suing over SCR's failure to have and maintain the $1 million in UIM coverage according to the contract with Pace Bus, the Appellate Court reasoned his actual complaint stems from "SCR’s failure to have and maintain $1 million in UIM coverage" from which he could have sought compensation.

The majority decision wisely added, when James settled his comp claim, he expressly released SCR, as his employer from further liability related to the car accident.

To read the court's decision, click here.


Synopsis: Late For A Very Important Date! Discrimination Claims Have Deadlines by Brittany Pendry, J.D.


Editor’s Comment: Plaintiff’s failure to timely file discrimination charge and failure to establish causation for retaliatory discharge claim caused the Court to affirm dismissal for this employer. Recently, the Illinois Appellate Court ruled Plaintiff’s charge of discrimination was untimely, as he failed to file a Charge of Discrimination with the Illinois Department of Human Rights within 180 days after the discriminatory act it derived from, which stripped the Department of subject matter jurisdiction. Additionally, Plaintiff failed to demonstrate any issues of material fact to support a retaliatory discharge claim.


In Vulpitta v. Walsh Const. Co., 2016 IL App (1st) 152203, (issued September 2, 2016), the IL Appellate Court affirmed the trial court’s granting of summary judgment in favor of Defendant-employer. In doing so, the Appellate Court agreed with the trial court in reasoning Plaintiff failed to establish he was terminated within the past 180 days as required by law—divesting the Department and trial court of subject matter jurisdiction, and the trial court further found there were no material issues of fact supporting Plaintiff’s retaliatory discharge claim.


Plaintiff worked for Walsh Construction as a carpenter and carpenter foreman from approximately June 2000 until May 24, 2012, when he was laid off due to a decrease in construction work. During depositions, Plaintiff agreed when an employee was laid off for 30 days or more, they had to re-sign up with Walsh Construction.


On approximately August 15, 2011, Plaintiff sustained a work-related injury to his hip and sought treatment at a hospital, and he returned to unrestricted work the next day. He saw his primary care physician on August 17, and that physician returned Plaintiff to unrestricted work. On October 31, 2011, Plaintiff began working on a construction project for Walsh Construction at a Spring Grove apartment complex. Plaintiff was laid off from this project on May 24, 2012 because the carpentry work was complete. The supervisor on that project testified Plaintiff was the very last carpenter to be laid off that project, and the secretary who handled payroll testified no carpenters were paid for work on that site after that date.


The supervisor for the project did not promise to rehire Plaintiff and did not indicate the layoff was temporary. Plaintiff further admitted he no longer received compensation or benefits from Walsh Construction after May 24, 2012, and he filed for unemployment benefits between May 24 and June 3, 2012. On July 2, 2012 Plaintiff saw a third physician who recommended an MRI of the hip. Plaintiff claimed he then contacted the supervisor’s secretary requesting she forward medical records for his workers’ compensation claim to the doctor, which Plaintiff said the secretary did. The secretary, however, testified she never had this conversation with Plaintiff and it was against company policy. On July 6, 2012, plaintiff filed a workers’ compensation claim for the August 2011 injury.


On July 11, 2011, Plaintiff and the Walsh supervisor of the Spring Grove project met for lunch. Plaintiff claimed the supervisor made statements he had to let plaintiff go, and the supervisor did not want to do this. The supervisor denied making these statements under oath.


Plaintiff recalled that around June 2008, he had learned the supervisor was going to terminate a different foreman because the foreman got “hurt a lot” and had become a “liability.” However, Plaintiff admitted he was not in the room during this conversation and did not actually hear these statements.


Plaintiff filed a charge of discrimination with the Illinois Department of Human Rights on December 28, 2012. The Department dismissed the charge for lack of subject matter jurisdiction, finding the charge was filed 218 days after Plaintiff was discharged from work. On October 15, 2013, plaintiff filed a three-count complaint alleging retaliatory discharge for seeking benefits under the Workers’ Compensation Act, and unlawful discharge/refusal to accommodate based upon an actual or perceived disability in violation of the Illinois Human Rights Act.


Defendants moved for summary judgment, which was granted by the trial court, and affirmed by the Appellate Court. Under Section 7(A)-102 of the Act, “charges of civil rights violations must be filed with the Department within 180 days after the date of the commission of the alleged violation.” 775 ILCS 5/7A–102(A)(1) (West 2012). “Compliance with the statutory time limit is a condition precedent to the right to seek a remedy and is a prerequisite to the Commission's acquisition of subject matter jurisdiction.” Weatherly v. Illinois Human Rights Comm'n, 338 Ill.App.3d 433, 437 (2003).


In reasoning Plaintiff’s charge of discrimination was untimely, the Court looked to the “undisputed facts” which gave “ample support to the trial court’s conclusion that [plaintiff] was terminated on May 24, 2012, for the purpose of determining whether his charges were timely.” The facts the Court found compelling were the supervisor’s testimony Plaintiff was laid off because the carpentry work was complete; Plaintiff was the last carpenter to work on the job and received no pay after May 24; the supervisor’s testimony Walsh had no other work for carpenters for the remainder of the year in 2012; and the fact Plaintiff filed for unemployment benefits immediately after he was laid off work on May 24. Furthermore, Plaintiff also admitted if an employee was laid off for more than 30 days, Walsh Construction employees had to “re[-]sign up” with Walsh.” Therefore, Plaintiff could no longer consider himself an employee as of June 23, 2012, and would have had to have filed his claim no later than December 20, 2012. However, he filed his claim on December 28, 2012.


In ruling on the retaliatory discharge claim, the court looked to the following three elements that must be established in order for a plaintiff to state a claim for retaliatory discharge: (1) he was an employee of the defendant at or before the time of the injury; (2) he exercised some right under the Workers' Compensation Act; and (3) his discharge was causally related to the exercise of his rights under the Workers' Compensation Act. The court stated, however, that the element of causation is not met if “the employer has a valid, non-pretextual basis for discharging the employee.” The court cited Clemons v. Mechanical Devices Co., 184 Ill.2d 328, 336 (1998).

The Court stated in this case, Plaintiff “failed to establish a causal connection between his exercise of his rights under the Worker's Compensation Act and his discharge.” Plaintiff reported his first work injury in March 2008, returned to work in August or September of the same year with work restrictions, was never denied a work break, and Walsh Construction consistently accommodated work restrictions. Further, Plaintiff never challenged that he was continuously employed on nine different construction projects between the date he filed his workers’ compensation claim on August 20, 2009 and the date he was laid off on May 24, 2012.

As such, plaintiff failed to establish causation and did not file in timely manner.

This article was researched and written by Brittany Pendry, J.D. You can reach Brittany at any time for questions about IDHR charges, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.




Synopsis: New IL County Board Members Can No Longer Be GPP’s or Ghost Pension Payrollers!! Can We Hope the Trend Will Spread?


Editor’s comment: We salute IL Governor Bruce Rauner and IL State Rep Jack Franks for a new law that simply makes financial, government and common sense. As we told our readers a couple of weeks ago, literally thousands of former government workers become GPP’s or Ghost Pension Payrollers when the hilariously low fake gov’t pension contributions they make while working are rapidly used up in retirement. After they use up every penny contributed during their work, they go back on lifetime compensation with guaranteed annual raises without the annoyance of having to do any further work for taxpayers.

Please note Illinois has 102 counties. For one example, Madison County that is the eight biggest IL county in size has 29 county board members. IMRF or the IL Municipal Retirement fund says there are about 927 county board members across this state getting this pension. The average payout is $1,800 a month. Most members only contribute 4.5 percent of their salary, and can get paid up to 75 percent of their final salary, plus 3 percent annual increases for life. The average recipient gets about $1,800 on a tax-free basis each month. The guaranteed 3% annual increases that will double the take every 23 years someone participates. If you make several thousand county board members into GPP’s or Ghost Pension Payrollers, you are certain to be spending millions upon millions of our tax dollars each year without any return.

A controversy that arose in McHenry County led to a new law that abolishes gov’t pensions for future county board members statewide. Consistent with existing IL law, existing county board members will have to document their work hours to reach a required minimum to qualify for a public pension. The changes mean taxpayers might save a significant chunk of the approximately $10 million each year on county board member fake government pensions in Illinois. Like most things with IL fake government pensions, there is no true “reason” for the 1,000 hour minimum and we feel everyone’s cousin’s brother’s uncle will be closely watching their buddies on the county board to insure  they write down enough hours to go on the dole when they quit.

The new limits received bipartisan support but were prompted by a political fight in conservative McHenry County that pitted Democratic state Rep. Jack Franks against mostly Republican board members. Franks, the son of Herb Franks, a long-time WC lawyer, is now running for county board chairman in November against Republican board member Michael Walkup, got pension fund officials to investigate whether McHenry board members were improperly claiming the pensions despite not working the required 1,000 hours a year. Eighteen of the 24 board members signed sworn affidavits saying they had worked enough hours to qualify. But when IMRF pension fund Executive Director Louis Kosiba asked to verify their claims, board members said they could not go back and document whether their claimed hours were real or made-up, noting they all seem to claim their work occurs outside of the public eye, making it easy to conjure up what is needed. As a result, Kosiba last week said his investigation was "inconclusive." By then, Gov. Bruce Rauner signed the new pension measure into law.

Franks objected to the plan where county board members were trying to get a full-time taxpayer benefit for part-time work. "We need to protect local taxpayers from having their money siphoned off by elected officials who are gaming the system," he said. In response, McHenry County board members voted to opt out of the pension plan entirely starting Dec. 1. However, members who are already vested will begin receiving their fake pensions immediately thereafter.

We remain firmly against all fake government pensions in this state. The fake gov’t pension that just ended is a perfect example of goofy government in the People’s Republic of Illinois—no one knows why part-time county members would get cushy lifetime retirement benefits with annual increases for contributing a random and small amount of money for a random and short number of years. We assure our readers these fake gov’t pensions eventually pay out millions of our dollars for retirees who live long enough.

We hope the State of Illinois, Chicago and all local governments move to a 401K or other plan where people that work in government receive retirements where they get back only what they and their employer put into the plan while working. It is preposterous to have to pay a secretary, park ranger, prison guard, state trooper or other government workers billions upon billions of tax dollars they did literally nothing to earn.

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