4-9-12; What a hoot!!! The State of Illinois announces a new website to connect job hunters with jobs—do you think the State of Illinois could start telling all of its “odd lot” total and permanent...

We live in a state where there are 500-700 State of Illinois claimants who are getting lifetime total and permanent disability awards because our leaders, like Governor Pat Quinn and Attorney General Lisa Madigan simply don’t defend such claims or bring folks back to work once awards are rendered. The cost of this to Illinois taxpayers is well into the millions. Please note every single claim could be ended if our state government would find these folks jobs right now. And as we have said many times—when state government doesn’t defend itself in the biggest of claims, it poisons the system for the private sector.

All someone has to do to get such amazing largesse is to have an injury or “repetitive trauma” condition that causes any sort of job restriction. With what we call the “golden diagnosis” of permanent job restrictions, State of Illinois workers’ are not returned to any job—it is almost as if the Americans with Disabilities Act does not apply to such workers because they would much rather have our tax dollars than return to real work, albeit within restrictions. Such workers get on a gravy train where they get high total and permanent disability benefits and COLA increases simply by not returning to work.

In the right setting, such workers can also legally “double-dip” to get either taxpayer funded disability pensions or regular pensions—unlike police and firefighters, there is no setoff or other limitation for “odd lot” claimants to get both the T&P award and their state pension.

With that in mind, we are laughing to hear Gov. Pat Quinn last Wednesday unveiled a new website aimed at making it easier to connect job hunters with businesses that are hiring. The program, Illinois JobLink, is similar to privately run websites that help match applicants with specific job postings. However, Illinois JobLink is free and does not charge people to search for jobs or employers to advertise openings.

Anyone can upload a resume, and those who get unemployment benefits from the state are required to enroll in the job search program, according to the director of the Illinois Department of Employment Security. We wish Chairman Mitch Weisz would tell all the Arbitrators to also require anyone claiming “odd lot” total and permanent status to similarly enroll.

The Illinois JobLink system allows businesses to work directly with specialists from the state employment agency to better tailor their search for new employees. If companies are hiring on a larger scale, the agency can use the system to call those who have uploaded resumes that contain the needed skills.

Governor Quinn said he hopes the service will make it easier for returning veterans to find jobs, noting the unemployment rate for service members is much higher than the rate for the general population. The Governor called on lawmakers in the House to pass a measure that would provide $5,000 tax credits for companies that hire returning veterans.

Governor Quinn was quoted as saying "Finding good jobs has got to be our number one mission in government. We want to link up our workers with those employers who need good workers with the right spirit, experience and talent to get the job done." Trust us, that sentiment applies in workers’ compensation as well as unemployment comp too.

The website is illinoisjoblink.com. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

4-9-12; Can A Deep Pocket Always be Saved by Plain and Simple Language?

Do you remember the quote from Denzel Washington in the movie, Philadelphia in which Denzel asked a potential client to: Explain this to me like I am a two year old? In the movie, Denzel played a street-wise litigator who wanted to clarify a potential client’s story. So, he asked the client to use plain and simple language when describing what had cause his injury. Well, it turns out clear language is also important to the Appellate Court of Illinois when deciding an important medical malpractice ruling.

In fact, in the medical malpractice case of Lamb-Rosenfeldt v Burke Medical Group, our Appellate Court analyzed whether consent forms from St. James Hospital were clear enough so a decedent would have or should have understand a doctor was NOT an employee of the hospital. The underlying case had been filed by the family of a woman who had sadly died of lung cancer. Before her death, the decedent had obtained medical treatment from a physician named Dr. Kathryn Burke. Notably, the decedent and Dr. Burke had not met in the hospital. Instead, they had met in a beauty parlor. By talking to each other over haircuts and hair color, the decedent had learned of Dr. Burke’s occupation as a physician. Eventually, the decedent started seeing Dr. Burke as a patient.

The decedent first went to Dr. Burke’s private offices but later Dr. Burke later saw the decedent in an office inside of St. James Hospital. Over the course of their relationship, the decedent had to sign certain consent forms. Apparently, these forms contained the following words in bold face and capital letters: “PHYSICIANS ARE NOT EMPLOYEES OF THE MEDICAL CENTER” and “NONE OF THE PHYSICIANS WHO ATTEND ME AT THE HOSPITAL ARE AGENTS OR EMPLOYEES OF THE HOSPITAL.” Decedent ended up signing these forms no less than a total of nine times.

A fact which is well known in medical malpractice circles is hospitals are usually the defendant with the greatest insurance coverage. What this means in such cases is the hospital usually has the “deepest pocket” and are the focus of Plaintiff lawyers in this and most states. Because of the hospital’s generous insurance coverage, sometimes creative ideas are advanced by Plaintiff lawyers to include and keep a hospital in a case. This type of creativity came into play when Plaintiff sued St. James Hospital was included in the Lamb case even though Dr. Burke was not an employee of the hospital. Notably, St. James Hospital was included even though the ONLY CLAIM against it was it was vicariously responsible for Dr. Burke’s conduct. Trying to make St. James Hospital responsible for the conduct of Dr. Burke, Plaintiff asserted there was a relationship called an “agency relationship” or a “vicarious relationship” between Dr. Burke and the hospital. In plain language, this means St. James Hospital had allegedly made the decedent think it—the hospital-- was Dr. Burke’s employer.

During discovery in the case, Dr. Burke testified she was self-employed and was NOT an employee of St. James Hospital. However, Plaintiff latched on to the fact Dr. Burke was chief of staff at the hospital, but Dr. Burke clarified this was an administrative position and she had never seen the decedent as part of her chief of staff position. Allegedly, Dr. Burke's position as Chief of Staff would arguably make a patient think Dr. Burke was an employee of the hospital. What finally saved the day and got the hospital dismissed was the language in its consent forms stating in bold and capitalized letters, “PHYSICIANS ARE NOT EMPLOYEES OF THE HOSPITAL.”

Many arguments were advanced by Plaintiff in the Lamb case to support a claimed vicarious relationship between Dr. Burke and St. James Hospital. However, the Hospital ultimately won the appeal and summary disposition was affirmed in its favor. Notably, the argument-straw that broke the Lamb Court’s back causing it to rule in favor of the hospital was based on the utter clarity of disclaimer language in the hospital’s consent forms. In fact, in upholding the dismissal of the hospital, the Court emphasized the consent forms contained, “clear and unambiguous independent contractor disclaimer language.” Because of the clear disclaimer language in these forms, the Court decided it would be unlikely the decedent or, for that matter, any patient could or should have reasonably believed Dr. Burke was an agent or employee of St. James Hospital.

Some questions still exist after this decision. One of them is: If all hospitals copy/plagiarize the consent forms from St. James Hospital, will they be assured dismissal of any claim alleging a vicarious relationship between the hospital and an independent physician? Here’s our advice and response: There is no reason for Illinois defense attorneys to pack up their offices and retire as cases like this one will continue to be litigated. Frankly, there are still many questions left unanswered by this decision.

One important issue which remains is whether the Appellate Court will apply its own reasoning if consent forms containing the same disclaimer language are used to defend an alleged vicarious relationship between a hospital and a doctor in the specialties sometimes called the R.A.P.E. defendants. These four R.A.P.E. specialties include doctors who do not have private practices outside of the hospital, including, Radiologists, Anesthesiologists, Pathologists, and ER Specialists .Since the doctors in these four specialties usually do not practice outside the hospital, Plaintiffs frequently claim a vicarious relationship exists. The argument in those cases centers on Plaintiffs' claims indicating it "looked like' the doctor was an employee rather than an independent contractor.

Time will only tell if the Appellate Court will continue to enforce the crystal clear language of a consent form which says: NONE OF THE PHYSICIANS ARE EMPLOYED BY THE HOSPITAL if a “deep pocket” hospital gets sued for the conduct of one of the R.A.P.E. defendant-doctors.

This article was researched and written by our newest attorney, Ellen Keefe-Garner, JD, RN, BSN. Ellen is licensed in both Illinois and Michigan and has 26-years of defense legal experience in defense of malpractice, general liability, workers’ compensation and employment practices claims. She brings extensive and very successful jury experience to our team. Please do not hesitate to send her thoughts and comments at emkeefe@keefe-law.com.

4-2-12; Scary Longshore ruling may foster more drug and alcohol free workplaces!

We have told all of our clients you are bonkers not to start to implement and enforce drug and alcohol free workplace rules. The risks in the states KC&A covers, Illinois, Wisconsin, Indiana and Michigan are much too high—one serious injury from one drunk is potentially explosive in costs. Now we have recently learned of the following Longshore WC ruling where injuries caused by the actions of a drunk/drug abuser might lead to even heightened liability under the concept of intentional tort.

In Holmes v. Pacarini USA, et. als, Plaintiff Holmes was employed by Defendant Pacarini USA, Inc. and was performing longshore work in the Port of New Orleans when a fellow employee ran into her with a forklift and pinned her to a load of iron. Before he ran into Holmes with the forklift, the driver was apparently drinking alcoholic beverages and smoking marijuana cigarettes laced with crack.

As a result of the incident, Holmes suffered a laceration of her right leg, an avulsion fracture of the mid left foot and permanent scarring; she also missed several weeks from work. Holmes filed an LHWCA petition for damages against her employer, Pacarini and two of its employees.

At the close of discovery, Pacarini filed a motion for summary judgment, arguing Plaintiff Holmes’ tort claims were barred by the exclusive remedy provisions of the LHWCA. This legislative proviso is similar to Section 5 of the Illinois WC Act.

The trial court agreed and it granted Pacarini's motion for summary judgment. Holmes appealed, arguing the LHWCA provides employees an exception allowing her to sue her employer for an intentional act caused by a co-worker and the co-worker’s action of intentionally imbibing alcohol and illegal drugs which leads to injury was an "intentional act." Please note if your organization doesn’t proscribe such activities, it is harder to argue the employee was acting outside the scope of their employment. And on the other side, if the injured worker can point to the fact many workers are routinely impaired from alcohol and drugs in your workplace, it may be much easy to prove the inebriated worker’s intentional acts were part and parcel of their work for you because you might be said to “adopt” or approve such actions.

The appellate court began by acknowledging, under most circumstances, when a longshoreperson is injured while on the job, the employer's liability is limited to compensation benefits under the LHWCA. However, the court went on to note it had recognized an exception to the general rule and held an intentional tort was not subject to the exclusive remedy provision of the LHWCA.

The issue of whether intoxication of a longshoreman falls under the “intentional act” exception to the LHWCA had never been addressed by the appellate court. The court held the actions of the worker to intentionally ingest illegal drugs and alcohol and then getting on a forklift and injuring another employee created a material issue of fact as to whether or not the conduct of the intoxicated employee rises to the level of an intentional tort.

Accordingly, the trial court's granting of the employer Pacarini’s motion for summary judgment was reversed and the matter was remanded to the trial court for further proceedings.

We have a sample drug and alcohol-free workplace policy—if you are interested, send a reply. We appreciate your thoughts and comments. Please feel free to post them on our award-winning website.