9-1-2014; Was It Partisan Politics for Gov. Quinn to Fire All IL Arbitrators?; Important Discrim Ruling, Analysis by Brad Smith; Tubes-of-Drugs and Controlling IL WC Medical Costs and more

Synopsis: Was It Partisan Politics for Governor Quinn to Fire All the IL WC Arbitrators and Reinstate Some Political Favorites? How Could It Not Be?

Editor’s comment: We recently saw a Chicago Sun-Times poll confirming what all of our readers should know—Governor Quinn has completely discarded any hope of being a “reform” candidate with a goal of giving independent and nonpartisan approach to Illinois taxpayers. If you aren’t sure, Gov. Quinn has been bought and paid for by state government unions, administrators, judges/justices and legislators who want to keep their “post-employment income” or what Illinoisans also call “pensions.” We assure our readers these “post-employment income” programs aren’t truly pensions as the vast majority of their money isn’t coming from contributions by the workers, matching money from government coffers and investment income. The vast majority of the money for these post-employment income programs are coming from multi-billion dollar borrowing that has to be paid by you and me and your kids and grandkids and probably great-great grandkids from our taxes/tolls and fees. In the same vein, all state government “pensioners” will now mooch free lifetime medical care from you and me—the IL Supreme Court just made that expensive multibillion dollar benefit untouchable by the legislature. Believe it or not, the free-loading pensioners fought and won so they don’t have to contribute even 2% of their pensions to share the cost of their healthcare with current taxpayers! We truly feel they have changed from “public servants” to make taxpayers their “private servants” as we now irrevocably owe IL government workers lifetime post-employment income and full healthcare coverage for the rest of their lives.

The media outlets have been looking at the complete and embarrassing mess that was made by the Quinn administration of a State of Illinois anti-violence program where lots of the administrators took the money that was supposed to go to neighborhoods to stop murders, mayhem and other violence. The other source of political bamboozling is the IL Dep’t of Transportation where lots of folks were given positions as “administrative aides” to allow them to get wholly political appointments for routine jobs in violation of the Shakman order which dictates only high-level jobs are supposed to be political.

How did Partisan Politics Hit the Illinois Workers’ Compensation Commission?

Well, when the Quinn Administration took over from Blago’s troops, there were a couple of interesting things happening at the good ole IWCC that started to make the news.

First, we had perhaps the worst Arbitrator in the history of Illinois Arbitrators in Jennifer Teague, now Jennifer Carril. Former Arbitrator Carril was sending blunt emails critical of other Arbitrators and attorneys. She tried to hide or keep secret a hearing in a controversial claim by a former IL State Trooper who was basically joy-riding at 138mph and texting his girlfriend when he blew a light and killed two innocent young girls. It seems fairly obvious the Assistant Attorney General assigned to defend that claim blew the whistle about the planned “secret hearing.”

Perhaps the oddest thing former Arbitrator Carrill did was to file a workers’ compensation claim for benefits for herself. What she learned is the State of Illinois has a silly, unnecessary and unwritten “rule” requiring injured state employees to wait six months after settling a workers’ comp claim before getting paid. We assume some misguided state administrator made this “rule” up to push some of the settlements from this year into the next fiscal year. When former Arbitrator Carril learned of the six-month wait, she caused a ruckus and tried to use her influence to have the “rule” waived.

What the commotion over a wait of 180-days for this one Arbitrator was make lots of folks look to see several sitting Arbitrators had filed workers’ compensation claims and had either received settlements or were waiting out the six-month period. In our view, this put all IL Arbitrators under a microscope. Some folks also learned the state adjusters at CMS had also filed claims and gotten settlements. For some reason the foul odor only settled on the sitting Arbitrators and the CMS adjusters got a pass and kept their jobs.

What Followed was a “Deform” or Misguided Reform of the Wrong WC Folks

As we indicate above, the Arbitrators came into the cross-hairs of the secret-powers-that-be-that-run-the-Commission and before we knew it, the Governor’s Office created a plan to not only fire all of them but strip out their civil service protection in the process! While our former Arbitrators would be allowed to “re-apply” for their jobs, it was clear an enormous and political house-cleaning was ongoing. Step one was to strip out civil service protections afforded the Arbitrators for several decades. This staggering and seminal change to the jobs of our Arbitrators was unprecedented and wholly unnecessary. The reason we say this is eleven or as many as twelve Arbitrators lost their jobs simply as political scapegoats—other than former Arbitrator Carril, no one has ever indicated why that many Arbitrators were suddenly ousted.

You Show Us Your Political Patron and We Will Show You Ours

Having fired all Arbitrators in a swift and unexpected fashion, what Governor Quinn’s folks then did is perhaps the worst thing they could have done from the perspective of decent and good government—we were advised Governor Quinn’s staff forced every former Arbitrator who wanted to get their job back do a secret and slimy “patronage-check.” To our understanding, the folks who could demonstrate they had active and continuing political patrons who strongly supported Governor Quinn or were solidly protected by the other side were allowed to return to their posts. For example, one former Arbitrator we knew had a political patron that had passed away a year or two before the controversy arose—that former Arbitrator lost his position.

Another immediate disqualifying factor was any Arbitrator who, like former Arbitrator Carril had a pending or prior IL WC claim or settlement. Basically, Governor Quinn’s troops reached the conclusion retaliatory discharge for filing a WC claim that is prohibited in the Kelsay v. Motorola ruling didn’t apply to what were now political posts. To our understanding all the former Arbitrators with pending or prior WC claims were put in the “do-not-rehire” pile.

What then happened is several of the terminated former Arbitrators filed lawsuits and sued the Governor for their obvious mistreatment and those suits are all wending their way through our courts. One appellate ruling was just issued in the claim brought by former Arbitrator Peter Akemann and, without much surprise to anyone, denied him reinstatement to his position. In our view, former Arbitrator Akemann was a quiet, honest and decent man who did his job for both sides and worked hard for our state. His brother David Akemann is a sitting Circuit Court judge. We consider both of them to be above reproach and great jurists. We feel the mistreatment of former Arbitrator Peter Akemann by the current administration to be the worst sort of partisan politics.

What Was the Biggest Problem With These “Deforms??”

The concerns we raise in response to these decisions are two-fold. 

First, we want our readers to understand our view IL WC Arbitrators can’t and should never be political appointees but under Governor Quinn, they now are. Instead of reforming the positions, he has politicized them. The reason IL WC Arbitrators had civil service protections was to insure they wouldn’t be subject to the whims of the party in power. One of the worst things an IL WC Arbitrator faces is listening to and considering the evidence and making a determination for one side or the other and then getting summarily fired because their honest and fair decision upset a powerful lawyer or union boss. Arbitrators aren’t supposed to work at the whim of their parties litigant. 

Please also note the IL WC system has an administrative appeal process that allows the Arbitrator’s ruling to quickly be brought before an openly political group—the three-member IWCC panel reviews the Arbitrator’s decision in a “de novo” appeal. The Commission panel is composed of a member of IL labor, management and one member that is supposed to represent “the public.” We feel this is a strong system for adjudicating questionable WC issues.

Second, the other problem with the humiliating challenge and sudden ouster of many of  to our former Arbitrators targeted the wrong people. We assure our readers, the problem wasn’t with the Arbitrator staff—the issue should have been the mismanagement of claims by the Central Management Services state agency who was charged with actual management of all IL state workers’ comp claims. We understand lots of state claims adjusters also brought WC claims to get settlements for themselves—unlike the Arbitrators, the adjusters weren’t summarily canned.

The CMS agency has been criticized by Attorney General Lisa Madigan and State Auditor William Holland. The agency has not gotten any better under Governor Quinn. It remains something of an hilarious mess—for one example, a large State institution in Chicago is still being “defended” or represented by a prominent Plaintiff attorney. That defense work hasn’t been put out to bid for more than a decade.

We were also advised at one point, CMS or Central Management Services had about 25,000 pending IL WC claims with only a handful of adjusters to keep watch over your money in paying out WC benefits to State workers. The analogy we draw to that mismanagement model is a prison with 10,000 prisoners and three guards—the managers can proudly confirm how much they are saving on payroll and benefits for the guards but the real costs are stopping the hundreds of jailbreaks and hunting down all the prisoners who are escaping. In the same way, state government workers and their legal counsels were making zillions of dollars on questionable WC claims because of the cacophony and confusion caused by this understaffed agency. 

That group was and still is misspending $150M or more a year on IL state workers with WC claims in a comical fashion. We feel no state dumps as much money into workers comp benefits than our state on a pro rata basis. For another example, we assure our readers there may be over a thousand state workers who have been adjudicated “odd-lot” total and permanent disability recipients—all of them could be returned to work, if the State would simply locate jobs in other agencies for them. In our view, the mismanagement of state claims by this agency poisoned many claims arising in the private sector. Another hilarious part of the mishandling of your tax dollars by CMS was their WC claims computer database was hilariously out of date and was thirty-forty years old. Basically, if you asked the adjuster for any data or information about what they were doing or spending, you would be advised they didn’t have the staff to go through all the paperwork to figure out how to answer you.

What they Quinn administration did to “deform” this issue was quickly and quietly issue an RFP or request for proposal to obtain an outside claim service to come in and try to make sense of the tens of thousands of pending and questionable IL WC claims. Rather than select an IL claims management company, Quinn’s folks selected TriStar Risk Management out of California. To our understanding TriStar is doing their best with the onerous task they have been given. Another issue is sometimes they have money to pay vendors and claims and sometimes they don’t. Finally, to heighten the level of mismanagement of IL state government workers comp claims handling, the State didn’t terminate the CMS adjusters who previously handled the claims when they were replaced by TriStar, There is now an ongoing tug-of-war over who is in charge of the whole mess.

We do feel the Quinn administration did make the IWCC more professional and things have gotten dramatically fairer for all sides. We don’t feel the Arbitrators who were let go were given a fair chance and we hope sitting Arbitrators are allowed to do their jobs as they see fit.. We also hope someone again takes a long hard and open look at CMS and TriStar to see if that combination is working and much more effectively handling WC claims by state workers.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Prior Comments May Be Background Evidence Demonstrating Racial Animus. Analysis by our Employment Law Defense Leader Bradley J. Smith, JD.  

Editor’s Comment: In Macias v. Bakersfield Restaurant, LLC, No. 13-cv-4300, 2014 WL 4057449 (N.D. Ill. May 28, 2014).   On May 28, 2014, Northern District of Illinois Judge Ruben Castillo denied Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint as 1) a 42 U.S.C § 1981 claim for racial harassment would not be inferred, and 2) a supervisor’s comments could be considered as background evidence.  

Plaintiff brought a lawsuit against Defendant alleging national origin and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., racial discrimination in violation of 42 U.S.C. § 1981, and retaliatory discharge in violation of state law. Specifically, Plaintiff claims he was “treated less favorably than” non-Ecuadorian and non-Hispanic individuals in his work environment despite meeting the legitimate expectations of his employer and performing his job well. Additionally, Plaintiff alleged during his employment, he was subjected to several race and national origin related comments by his supervisor. Those comments allegedly included: (a) “Mexicans are dirty to work with”; (b) “You Mexicans stink!”; (c) “You [] Mexicans are stupid”; and (d) “[] Mexicans!” Additionally, Plaintiff claims his iPhone went missing. Eventually, after numerous complaints, Plaintiff found his iPhone in his supervisor’s vehicle. Shortly thereafter, Plaintiff alleged he was terminated without an explanation and without being subjected to any formal discipline.  

On August 13, 2012, Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff amended his complaint on August 30, 2013. Particularly, in Count I, Plaintiff alleged national origin discrimination in violation of Title VII; and in Count II, Plaintiff alleged racial discrimination in violation of Title VII and Section 1981. Subsequently, Defendant filed a Motion to Dismiss Counts I and II pursuant to Federal Rule of Civil Procedure 12(b)(6).  

Initially, the Court declined to treat the Motion to Dismiss as a motion for summary judgment in order to consider documents Defendant attached to its motion. Next, Defendant argued Plaintiff’s claims should be dismissed as Plaintiff intended to bring a claim for racial harassment, which Defendant contended exceeded the scope of his EEOC charge allegations. Instead, the Court declined to accept Defendant’s argument, and consequently, the Motion to Dismiss was denied as Plaintiff properly exhausted his national origin and racial discrimination claims before the EEOC. Thus, Judge Castillo declined to dismiss Plaintiff’s claims for national origin and racial discrimination.

Unavailingly, Defendant also argued Plaintiff should not be allowed to use the aforementioned comments in his complaint because background evidence is permitted only when a “current practice” is at issue, and Plaintiff’s dismissal was not a current practice. However, Judge Castillo reviewed Seventh Circuit law that interpreted Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002), to mean where “the plaintiff timely alleged a discrete discriminatory act …, acts outside of the statutory time frame may be used to support that claim.” Accordingly, Judge Castillo determined the comments Plaintiff included in his amended complaint served to illuminate the discriminatory conduct by indicating his supervisor’s racial animus. Therefore, Judge Castillo denied Defendant’s Motion to Dismiss in its entirety.  

We recommend you always engage in a thorough investigation of racially charged comments in the workplace. It is even more essential to investigate allegations of racial comments when a supervisor with the ability to hire and fire employees is alleged as the perpetrator. Not doing so may subject you and your company to numerous discrimination claims as racial comments demonstrate animus in a supervisor’s tangible employment decisions. An investigation will allow for any necessary discipline and will also shield a legitimate decision of no discipline.    

This article was researched and written by Bradley J. Smith, JD.  Bradley can be reached with any of your employment law and general liability issues at bsmith@keefe-law.com.  

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Synopsis: Are the “Tubes-of-Drugs” About Patient Care or Making Money?

Editor’s comment: We received a question and comment from a long-time reader who inquired about what steps should be taken when you see doctors and other healthcare givers prescribing tubes of compound “pain creams” at a gigantic mark-up. These tubes full of narcotics and other sorts of snake oil can cost as much as $1,000 a piece! We assume they provide the patient a major kick for your money.

Take a look at this link to see how the “Tubes-of-Drugs” are being marketed to doctors to maximize income from dispensing it to the soon-to-be greasy patients: 

http://www.primemedicaltechnologies.com/wp-content/uploads/2013/08/terocin-profit-sheet_new.pdf  

In the IL WC system, the major tools to control medical care of all types, including tube prescriptions are

·         Utilization review or UR—we recommend Genex or CID Management to quickly and rapidly get all medical care and prescriptions reviewed and analyzed in your claims.

·         IMEs or Independent Medical Examinations to get a top-notch Pro from Dover to review the patient’s chart and opine about the course of care and prescriptions—if you need recommendations on an IME expert, send a reply and we can provide our KCB&A expert list or contact Chris Rocks at Woodlake Medical for his top docs.

·         Having medical and prescriptions priced and processed under the IL WC Medical Fee Schedule—we have a coding expert who can provide assistance if you need it; simply send a reply with questions or concerns.

·         Implementing an IL WC PPP is another strong method to control your workers’ comp costs in our state—if you go this route, you limit your workers “choice of physician to either the PPP doc or one other choice outside the PPP. Two great sources for information and enrollment into an IL WC PPP is Darren Stahulak of CorVel or David Kolb of HFN, Inc.

·         Last but not least, if you need aggressive defense counsel to analyze and devise defenses at the IWCC that work, send a reply for the KCB&A defense member in your area.

We appreciate your thoughts and comments. We thank the reader who sent us this solid information

8-25-14; Election Concerns for All Illinoisans; Do Retailers Need to Provide Security? by Matt Ignoffo; Important Ruling on Jones Act v. LHWCA by Jim Egan; Contribution Update by Matt Gorski and more

Synopsis: Concerns for our Readers about the Coming IL State-Wide Election on November 4, 2014.

Editor’s comment: We are carefully watching and listening to see how the political battlefield is firming up. What we consider strange beyond strange is the lack of political discussion about the biggest issue facing all Illinoisans—state government pensions. This growing issue trumps every other state matter, including workers’ comp.

As you may be aware, Governor Quinn was giving a speech at the IL State Fair a couple of years ago. As Gov. Quinn was in the process of trying to reform the pension issue, a group of state government union members were in the audience at the State Fair and booed the Governor off the stage. In stark reply, Governor Quinn very quickly fired the wife of one of the union bosses—former Arbitrator Jacqueline Kinnaman. We felt bad to see Arbitrator Kinnaman so unceremoniously canned, as she was a quiet, honest and hard-working administrator.

What is wacky about former Arbitrator Kinnaman getting the boot is the same folks who rudely booed Governor Quinn off that stage are now his strongest supporters! Governor Quinn has received literally millions and millions in campaign contributions from government unions who want to keep their pensions sky-high and effectively unsustainable. Unless the State of Illinois finds oil or discovers gold, our taxes/tolls/fees are going to have to rise and no one is talking about it. If you look at the graph to the left, you will note in thirty years, the five IL government pension programs are going to cost more than the entire amount of tax/toll/fee income our government is taking in annually!

In our view, basically the government unions would prefer to have Governor Quinn in place to muck along with the current government pension cataclysm than have political neophyte Bruce Rauner in place to push true pension reform. But that all begs the question—how is either candidate going to truly reform the current pension calamity?

Governor Quinn was able to get moderate “reforms” passed for three of the five state pension programs. He also got a law passed requiring retired state workers to pay something toward their healthcare coverage. If you aren’t aware, the IL Supreme Court has already knocked out the law on the requirement retired state workers contribute to their healthcare costs. The IL Supreme Court ruling clearly signals they are also going to knock out any reforms of the three pension programs that Governor Quinn pushed for and passed. The 800lb pink gorilla in the ongoing election is what Governor Quinn might do if he is going to reform state government pensions, once the Supreme Court says he can’t follow the earlier approach. If you want our thoughts on the only paths to pension reform, see below.

What does this crisis mean for you, me and other IL government voters? Well, the state government pension programs have to be changed—they can’t stay the way they are or the state is facing dramatically higher taxes, tolls and fees. Try to contemplate state taxes and tolls doubling or even tripling. Please remember every business entity or government always has more former employees than active employees. If you are forced to pay more money to your former employees than they made while working for you, you are certain to go bankrupt quickly—that is what is happening to our state as you read this. If you look at the graph that we consider accurate, the cost of Illinois state government pensions are already at about 22% of all income received by IL state government today. During the next four years or the next governor’s term, state government pension costs are going to be about ½ of all current state gov’t income. In a decade or two, state government pensions are going to drain all the current income our state government collects.

Don’t believe us? Well, here are a couple of simple examples of where your money is going. Please note everything we are outlining is completely legal and legitimate for the participants. Please also note there are folks from both the Democrat and Republican sides who enjoy these hefty benefits—this is a bipartisan fiasco.

·         Do you know an IL judge or justice can work just nine years before becoming vested and entitled to a lifetime pension and taxpayer paid healthcare? We assure you the current IL system can pay a judge/justice over a million dollars a year in their lifetimes for the nine years of service! The vast majority of the money to pay the “pension” or post-retirement income of a retired judge/justice doesn’t come from the “pension” program, it is coming from our current tax dollars. The annual statewide cost of all these former judges/justice pensions are well over $100 million dollars each year. That post-employment income cost is inexorably rising at 3% on a compounded basis each year—they will quickly make more money annually in the “pension” program than they made while working (it takes about six years for that to occur). Their raises and post-employment income boosts are protected in the Illinois constitution.

·         Similarly, a former Illinois legislator like U.S. President Barack Obama or former Chicago Mayor Richard M. Daley can also receive more than $4M over their lifetimes for their required four years of part-time legislative service to become vested. Again, over 80% of the money to pay former legislators is being paid from your current IL taxes, tolls and fees. That “pension” program is costing you and I over $100M each year.

·         The former New Trier H.S. superintendent is now in Ojai CA and isn’t truly “retired”—he is working as a school superintendent there. He makes about $200K working as a school superintendent in California and is also receiving about $300K from you and me as a “pension” or post-retirement income for his years at New Trier. You may quickly note he isn’t “retired”—he is still working in the same job, albeit somewhere else. He is also receiving 3% annual increases to his “pension” and if he lives long enough, you and I will owe him $400K a year and more. You may also note about $200K of his current $300K “pension” or post-employment income is being paid from our current tax dollars.

During the last several years, both IL House Speaker Mike Madigan and Senate President John Cullerton have written letters and met with state government union leaders to try to find a middle ground and agree to reform these five programs that are sure to eventually fail. To our understanding their efforts were rebuffed. After those efforts, Senate President Cullerton made it clear—IL state government can’t file for “bankruptcy” as states aren’t included in the Bankruptcy Code so the only alternative is going to be dramatically raising your taxes, tolls and fees. If you aren’t crystal-clear about it, the folks currently funding Gov. Quinn’s campaign are secretly but effectively demanding protection of their “pensions” and will press hard for the legislature to dramatically increase your taxes. We predict this is going to happen in the legislative session in the week following the gubernatorial election because doing so will give the legislators the longest possible time to calm down the voters who are certain to scream to the heavens about it. Right now, the current IL deficit for pensions and healthcare costs exceed $140 billion dollars and continues to rise every day—someone is going to pull the plug on all that borrowing some day.

How can IL government pensions be reformed? Well, as veteran lawyers who have carefully reviewed the IL Supreme Court ruling knocking out healthcare reform, we see two paths and each has issues Governor Quinn and Bruce Rauner and every IL state senator or representative should be forced to address by the voters.

1.    Start all new or “non-vested” government employees in an affordable retirement program, such as a 401K or other similar approach. You would have to keep paying the vested ones at whatever cost until they have left this mortal coil.

2.    Change the IL Constitution to eliminate the “pension clause” to see if that might allow a more affordable pension or post-employment approach. If you aren’t sure, the “pension clause” is a “stick-it-to-the-taxpayers” clause requiring you and I to pay whatever pension or post-employment income to participants regardless of how lucrative it might be for them and how punitive it is for us. Basically, the Supreme Court ruling on healthcare benefits confirms post-employment benefits for former state government workers can only rise; they can’t ever be cut.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: My Phone!!! Plaintiff’s Negligence Claim Dismissed When Cell Phone Stolen at a Fast Food Restaurant. Analysis by Matt Ignoffo, J.D., M.S.C.C.

Editor’s Comment: The facts in Lewis v. Heartland Food Corp involve Plaintiff Lewis alleging his iPhone was stolen by fellow customers while at Burger King No. 1250. 2014 IL App (1st) 132842 (July 25, 2014). He asserted Burger King, by not providing "manned security" in the restaurant, negligently, as well as willfully and wantonly, breached its duty to exercise ordinary care and caution and provide all patrons proper security. Plaintiff sought $1,000.00 in compensatory damages and $1,000,000.00 in punitive damages. Defendants filed a motion to dismiss challenging the legal sufficiency of the complaint. The motion was granted by the trial court. Plaintiff appealed.

As many of our readers will recognize, for a plaintiff to state a cause of action for negligence, his or her complaint must allege:

• Facts that establish the existence of a duty of care owed to him by Defendant;
• A breach of that duty; and
• An injury proximately caused by that breach.

In their motion to dismiss Defendants argued they had no duty to protect plaintiff from the theft of his iPhone. The Illinois Appellate Court examined the rules of law regarding landowners having a duty to protect others. In general, a landowner has no duty to protect others from criminal activities by third persons unless a "special relationship" exists between the parties. The applicable special relationship here is business invitor and invitee.

In Illinois, even when this special relationship exists, the landowner may only be held liable for physical harm caused by acts of third persons. The Court examined an out of state case with similar circumstances. The decision indicates, in general, a business landowner or occupier has no duty to protect its invitees from the criminal acts of unknown third parties absent "special facts and circumstances." Such circumstances were noted to be when the landowner knows or has reason to know there is a likelihood of conduct by third persons, which is likely to endanger the safety of visitors.

The parameters of the "special facts and circumstances" exception did not reach a duty as to damage to or loss of property, and the Appellate Court declined to extend the exception to cases of property loss or damage. The IL Appellate Court here was in agreement and held Burger King owed Plaintiff no duty to protect him from the theft of his iPhone by third persons.

Please note the Court went on to state in the absence of such a special relationship, liability may still be imposed for negligent performance of a voluntary undertaking, such as a voluntary undertaking to provide security. As there was no voluntary undertaking of Burger King to provide security in this matter Plaintiff again failed under this theory of liability.

As you can see, a minor change in the facts, such as a history of theft at the Burger King, which it was aware of, and Plaintiff having been struck during the theft, sustaining physical damage, would indicate such a claim would survive a motion to dismiss. Likewise, if a security officer were present and the theft occurred the argument could be made that by allowing the theft, Burger King was negligent in its performance of providing security.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.

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Synopsis: Important Ruling on Distinction Between Jones Act and LHWCA to Move to the U.S. Supreme Court, If They Will Accept—analysis by Jim Egan, J.D.

Editor’s comment: The U.S. Supreme Court has been asked to determine whether a ship repairman who was injured when the crane he was operating collapsed should be allowed to recover for his emotional trauma from the death of a coworker/relative in the accident under the Jones Act. The 5th Circuit Court of Appeals' determined the Jones Act applied to Plaintiff in a ruling many in the maritime industry feel vastly broadens the definition of a "seaman" under the Jones Act.

For quick reference, the Jones Act is a longstanding benefit plan for folks who work on “navigable waters” or our rivers and neighboring oceans—Jones Act claims that don’t settle are typically presented to juries. The Longshore Harbor and Workers’ Comp Act is a federally administered WC benefit program for folks that fix/repair vessels and/or load and unload cargo. LHWCA claims that don’t settle are tried before Administrative Law Judges who work for the U.S. Department of Labor. The defense team at KCB&A has experience in handling both.

In Naquin v Elevating Boats, Plaintiff Naquin worked at the Elevating Boats shipyard in Houma, Louisiana, and his primary job duties were maintenance and repair of the company's fleet of lift-boats. While Naquin was using a lift-boat the boom and crane house abruptly separated from the crane pedestal. Naquin was able to escape from the crane before it toppled onto a nearby building. However, Naquin suffered severe injuries to his feet and an abdominal hernia in making his escape. Complicating matters was the fact the husband of his cousin, who also worked for Elevated Boats, was inside the building and was crushed to death when the crane fell on him.

Naquin filed a Jones Act suit alleging Elevated Boats had been negligent in the construction and/or maintenance of the shipyard crane. After a three-day trial a jury awarded him $2,463,842 in damages, plus interest. 

Elevating Boats appealed, asserting Plaintiff’s injuries should have been covered by the Longshore and Harbor Worker's Compensation Act because he was "a land-based boat repairman," who "spent less than 0.01% of his work time...on any vessel in navigable open waters." Even though he worked on repairing and inspecting boats dockside, Defendant argued "he was not on navigable vessels, and the nature of his work did not expose him to the perils of the sea," Elevating Boats contended. Thus, Elevating Boats insisted he was not the sort of worker the Jones Act was designed to protect.

The Federal 5th Circuit Court of Appeals in New Orleans disagreed, concluding Naquin was a Jones Act seaman. The panel majority also held emotional damages resulting purely from another person’s injury, and not a fear of injury to one’s self, are not compensable under the Jones Act. Further casting confusion on the claim, the dissent argued the Jones Act shouldn't have even come in to play in Naquin's case because he was a land-based worker.

In its petition for rehearing, Elevating Boats argued, unsuccessfully, the en banc federal court needed to reverse the panel's decision because it was inconsistent with the U.S. Supreme Court's decision in Chandris v Latsis, as well as rulings from the 5th, 9th and 11th Circuits following the rule ofChandris. Elevating Boats argued Naquin could not show how his connection to any vessel in navigation was "more than fleeting," and he did not face the type of maritime perils the Jones Act was intended to address.

Because of the federal circuit conflict, Elevating Boats believes this case presents a prime issue for the U.S. Supreme Court to review and is hoping the SCOTUS accepts the case in order to provide attorneys with more guidance as to the scope of the Jones Act. Elevating believes the dissent is correct and the Jones Act does not apply. Maritime defense experts are following this case closely and believe the Fifth Circuit majority was right in reversing the jury's damage award. Many experts feel even applying the Jones Act to a case of this nature blurs the line between LHWCA coverage and the Jones Act. Concerns are based upon 5th Circuit's ruling, workers who aren't really assigned to vessels and exposed to the perils of the sea qualify as Jones Act seamen, which would open the door for nearly any land-based worker who does repairs onboard a vessel to bring a Jones Act claim.

If workers can qualify as both longshoremen and seamen, vessel owners could may face significantly more exposure and costs for claims if the 5th Circuit’s decision stands. So along with the rest of the U.S. maritime industry we will continue to follow the progress of this matter and report. This article was researched and written by James F. Egan, J.D. who is our LHWCA and Jones Act guru. Jim can be reached for your questions and concerns at jegan@keefe-law.com.

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Synopsis: To Stay or Not to Stay a Contribution Action, that is the Question. Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: On July 25, 2014, our IL Appellate Court issued Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842 (July 25, 2014). Justice Randye Kogan of the First District of the Illinois Appellate Court ruled it was within the trial court's discretion to stay a third-party contribution action until after a trial of the original action. We feel this ruling is of great importance in the construction and other industries where contribution actions are commonplace. 

Plaintiff and his wife brought both negligence and loss of consortium claims against Defendants for injuries resulting from metal tubing falling on him during a construction project. Defendants initially responded by denying any liability. Subsequently, three (3) years after Plaintiff brought the original claims, Defendants requested leave of the trial court to bring a third-party contribution claim against the pain management doctor alleging medical malpractice. The trial court granted Defendants leave to file their contribution claim. However, as Plaintiff did not want further delay of the already set trial, he requested relief from the trial court. Using its discretionary authority, the trial court granted a stay of the contribution claim until after the trial of the original claims was completed. Defendants' counsel requested an appeal of the stay pursuant to Illinois Supreme Court Rule 307(a)(1), which allows for the immediate appeal of an injunction. Upon hearing the matter, the Appellate Court affirmed the trial court’s rulings.

The contribution claim alleged Plaintiff’s pain management doctor misdiagnosed Plaintiff with complex regional pain syndrome (CRPS), failed to treat plaintiff for hypertension, failed to treat plaintiff for plantar and peroneal neuralgias, administered massive doses of Decadron—even though plaintiff has hypertension and other alleged acts of negligence.

Importantly, the Appellate Court analyzed the Laue rule, which states “if an action by an injured party is pending, any contribution claim must be made in that pending action.” It is essential that upon receiving defense of any type of claim that your attorney consider any available contribution claims and all third-party practice options which might relieve you of a portion of liability. In other words, if you do not use contribution claims, you lose them.  

Additionally, the Appellate Court decided to affirm the stay of the contribution claim until after the original claims trial was completed because of the length of time that had passed without a trial. The Appellate Court also held Defendants waived certain claims by not presenting them before the trial court at the time of it ordering the stay of the third-party proceedings.  

Overall, we recommend that you always consider any possible contribution claims at the earliest opportunity. The earlier you are able to assert them upon receiving a lawsuit, the better. Not doing so will subject you to all of the liability when another individual or entity may be responsible for a portion or possibly the entire liability. If you aren’t sure of other paths for contribution claims, feel free to send an email or contact a KCB&A attorney to discuss.

This article was researched and written by Matthew G. Gorski, JD. Matt can be reached with any of your questions regarding third-party practice, contribution claims, workers’ compensation, and all other general liability issues at mgorski@keefe-law.com.

8-18-14; Death Wish: How WC Adjusters Can "Smoke" a Claim Before Defense is Involved; IL WC Arbitrators Comings/Goings; WCLA CLE Reported by Pankhuri Parti, JD and More

Synopsis: Death Wish—How WC Adjusters Can “Smoke” A WC Claim Long Before Defense/Legal is Involved.

Editor’s comment: We have seen this happen over and over again and we have to tell the WC claims industry what many of you are doing wrong. There appears to be a “presumption” you can’t involve attorneys or legal advice unless and until you have to—that presumption is a problem someone at your organization has to understand and stop. If you want to win or favorably settle WC claims, get defense counsel engaged early and often. Here are some clear reasons why.

First, we have seen claim after claim come in with average to bad accident investigation. As we have advised our readers, clients and friends, if you haven’t done a valid and complete accident investigation in a lost-time claim, you are very much like a ship in troubled seas without a rudder—you are going to bounce and flop around without any direction. When Petitioner tells the adjuster they “hurt themselves lifting,” many adjusters will record that fact and don’t make further inquiries into what was lifted, how many times and how much it weighed. We have actually read recorded statements where an adjuster will ask a claimant if they lift “a lot” as part of their work. With an affirmative answer, the claim starts to go south. If you ask the defense team at KCB&A, we are happy to assist to insure you have a valid and complete accident investigation to get the “ship” that is your pending IL, IN, WI or MI work comp claim moving forward.

The next step in “smoking” the employer on the claim is the adjuster will set an IME. In some instances, the IME letter will invariably call “lifting” a “work injury” without any details or specifics. The adjuster will ask if the “injury is related to work” without providing any further information about what was lifted and how many times the lifts took place. With that minimal information, many IME docs aren’t smart enough or are too busy to ask the adjuster or the worker any details. If the worker confirms they were “lifting at work when they felt pain,” it becomes a causally related event. From that exchange, the employer is now “smoked.”

In contrast, if you send the claim to the defense team at KCB&A or just let us review the draft IME letter at no charge, we won’t call the problem an “accident” or “injury,” we will call it what it is “onset of pain.” We assure you the devil is in the details. If the worker asserts he or she had “onset of pain” while working, it isn’t nearly as “compensable.” Lots of people get sore for lots of reasons both at work and at home.

The next step in completely “smoking” the claim after getting a bad IME opinion from your expert is the FCE or functional capacity evaluation. Some WC adjusters are told to get FCE’s whenever and wherever possible. In our view, the FCE-mistake is certain to further “smoke” the WC claim and the employer. The biggest problem with traditional FCE’s is they have little scientific significance and are based primarily on subjective evaluation of the “effort” of the injured worker. Very few current FCE providers have ramped up their testing to meet scientific standards. If you want examples, send a reply.

Please also understand lots of claimants are coached to or just figure out they should act like disabled people in FCE’s and they get “permanent restrictions” as a result of the testing. If that happens on a claim you are handling, you are now stuck with the questionable restrictions that are very hard to rebut in our IL WC system. Workers with such restrictions will try to use the permanent restrictions to block return to work and then start what our defense team calls the “wage differential dance.”

Unions across Illinois will rely on questionable FCE results to claim the employee can’t do essential job functions and can’t continue active membership—they do that to maximize WC recovery for their union member, even though it almost certainly violates ADA. Then workers with the “right” FCE results quickly get low-paying jobs and want you to pay their differential for life.

Please also remember there are some IL WC Arbitrators that still will provide some credence to invalid FCE’s in a fashion that is infuriating to employers—most employers feel an invalid FCE is completely worthless. We have seen Illinois hearing officers askemployers to pay $100K-500K and more in wage loss or total and permanent disability claims in reliance on wholly invalid and/or questionable FCE’s. And surveillance results routinely indicate FCE testing was a sham. We have seen folks who couldn’t lift the equivalent of a gallon of milk in an FCE, lift 50-100lbs. when they don’t know they are being “tested.” Lots of claimant attorneys are now sending their clients for FCE’s because they know the claim becomes worth more money, even though the testing is silly.

In our view, compare the work of the Registered Physical Therapist or RPT at Accelerated Rehabilitation or Athletico when they have your worker in front of them during physical therapy for, let’s say, six weeks. The RPT can measure progress and insure the worker is doing everything they need to do to recover from care. The RPT is keeping regular notes and a progress chart as part of their normal work. At the end of the period of seeing and evaluation of the worker for all that time, is there any reason to put the worker “on stage” to do an FCE and fail? Isn’t the worker going to contradict everything the RPT recorded, if the FCE is invalid? Isn’t the FCE a complete waste of money and time when compared to the RPT’s expert work?

Having performed an average to bad accident investigation, to then get an adverse IME and sought an invalid/worthless FCE, some adjusters will then send the claim to defense counsel and ask for miracles. By that point, many claims are already “smoked” and Plaintiff-Petitioner’s counsel is asking for six and seven figure settlements. Trust us, attorneys don’t “win” claims, we put on evidence and argue for our side. You can’t argue very much when you are handed a bag of feathers that doesn’t help the employer.

Our point at KCB&A to such WC adjusters is to engage us for free at the earlier stages and let us help. Don’t wait until the last minute to validate your accident investigation. Don’t send an IME letter to your primary defense expert without asking your attorney about the questions being posed. And for gosh sakes, please, please never use FCE’s that work against your client’s interests—focus on recorded progress in physical therapy and work hardening.

Or send us a reply. We truly appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: IL WC Arbitrators Are Coming and Going at a Rapid Clip. Will They Ever Take the Politics Out of Politics in Selecting Our Hearing Officers?

Editor’s comment: We learned today former IL WC Arbitrator Brandon Zanotti is rapidly leaving or has already left the IWCC to become the Williamson County State’s Attorney. It appears the current State’s Attorney got into some controversy and has stepped aside. We wish Arbitrator Zanotti the best in this new venture. We have to wonder why the IWCC isn’t reporting this news on their otherwise excellent website. What they are letting us know is:

Arbitrator Brandon Zanotti's August call will be handled as follows:  Arb. Lee will appear in Collinsville August 18-22; Arb. Dearing will appear in Belleville Aug. 25-28.  The Aug. 29th trial date in Belleville has been cancelled. 

We recently learned former IL WC Arbitrator Svetlana Kelmanson was not reappointed and is no longer working for the Illinois Commission. Again, we feel it mildly unusual to see this wasn’t announced. While Ms. Kelmanson may not have been liked in some quarters, the defense team at KCB&A felt she did solid work and brought her best efforts to the job every day.

We looked at the “Jobs” section of the IWCC website that send us to this link: http://agency.governmentjobs.com/illinois/default.cfm?clearsearch=1 and we note the open Arbitrator jobs aren’t posted.

We will keep checking the www.are-you-nuts-these-are-political-positions.com website to see if there is any change on the status of the open IL WC Arbitrator jobs being posted. Someday, we hope someone is going to make the Arbitrator positions non-political by doing an executive search for the best possible candidates.

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Synopsis: The IL Workers’ Comp Lawyers’ Ass’n CLE’s for the IL WC Industry—expansion of “arising out of” definition, clarification of manifest weight of evidence standard, and refusal to expand Statute of Limitations to lung diseases other than pneumoconiosis. Thoughts and Analysis by Pankhuri K. Parti, JD.

Editor’s comment: On August 13, 2014, three IL WC Appellate Court cases, each concerned with a different topic, were presented to the public by WCLA in a valuable and informative continuing legal education format. Some of the key issues are discussed and reported below.

(1)  Expansion of the “arising out of” definition?

The case discussed was Don Young v. Doncasters, dba MECO in which Petitioner, a parts inspector, claimed he was injured while reaching into the box to grab the last part to examine when he felt a pop on his shoulder and little bit of burning sensation. The medical history given by Petitioner to various providers was varied and Petitioner also admitted the act of reaching down was an activity of daily living, which he does at home every day.

The Arbitrator denied Petitioner’s claim citing various cases wherein claimants had claimed injuries occurring as a result of actions of daily living like Nardi v. Village of Harwood Heights, Mary Jo Blake v. Community Care Systems, Crockett v. Casino Queen.Just like all those cases because Petitioner’s injuries arose as a result of an activity of daily living, it was not found compensable and the claim was denied. The Arbitrator also questioned causal connection based on the finding of significant arthritis in Petitioner’s shoulder. On appeal the Commission essentially adopted the findings of the Arbitrator confirming while the injury occurred in the course of employment, it did not arise out of employment as the mere act of reaching down did not increase Petitioner’s risk of injury beyond what he would experience as a normal activity of daily living. As the only change, the Commission struck the Arbitrator’s finding of lack of causal connection explaining once the issue of “arising out of” was decided, causal connection was no longer relevant. In a separate dissent one of the Commissioners noted the injury should have been compensable as even though the act itself was one of daily living, the risk of sustaining an injury was increased due to the frequency of the action and the dimensions of the box Petitioner was reaching into. The circuit court again affirmed the denial of Petitioner’s claim.

The Appellate Court, however, reversed this decision and found the injury was compensable. In doing so it held the activity Petitioner was performing was a risk distinctly related to his employment because evidence clearly showed Petitioner was performing acts which the employer might have expected him to perform so he could fulfill his assigned duties. The Appellate court also went ahead to clarify that the “increased risk” analysis was only undertaken when the risk to which an employee was exposed was a neutral risk and since this was not the case here there was no need to for the issue to be analyzed.

In our opinion by its reasoning to find the injury compensable, the Appellate Court may have opened the floodgates to potential litigation. We find it difficult to determine at what point an employer might be able to definitively state the claimed injury was not from an action the claimant was expected to perform to fulfill his assigned duties. To change the facts a little, if Petitioner had injured his shoulder while reaching down to tie his shoe laces, would it have been an action the employer expected him to perform? What about tripping while walking from one point to the other? Stepping off a truck or climbing stairs? It can definitely be argued all these actions were something which could have been expected and we see the petitioners’ lawyers citing this case often to claim any and all actions arise out of employment thus making the injury compensable.

(2)  Manifest Weight of Evidence Standard

As we are aware a reviewing court looks at issues of fact decided by the Commission with the “manifest weight of evidence” standard unlike issues of law, which are reviewed de novo. In Dig Right In Landscaping v. IWCC the Appellate Court clarified the manifest weight of evidence standard did not mean the findings of the Commission would be upheld only if the reviewing court reaches the same conclusion as the Commission on an issue of fact. Instead, the test is whether there is sufficient evidence in the record to support the Commission’s determination. In the cited case the Arbitrator denied the claim finding Petitioner was not credible, however, the Commission awarded benefits finding Petitioner credible and his testimony supported by facts. The Circuit Court found the Commission’s decision to be against the manifest weight of evidence and reinstated the Arbitrator’s decision.

The Appellate Court, however, again found the Commission based its decision on credible evidence and held its decision was one which could be reached by a rational trier of facts. The decision noted the Circuit Court had found Claimant lacking in credibility which made the causation opinion of treating physician unreliable, but gave more weight to the findings of the Commission over the Circuit Court. The decision explained while the reviewing court could view the credibility of claimant differently than the Commission, it was the exclusive function of the Commission to judge credibility and assign weight to medical opinion testimony. However, in reaching this decision it seems the Appellate Court overlooked the fact the Arbitrator, who was in the best position to judge credibility of the claimant by actually listening to the testimony, had also found him to be unbelievable.

It can be argued through this decision the Appellate Court has indicated it will adopt any decision made by the Commission – the actual trier of facts – as long as it was rational and based on facts in evidence.

(3)  Refusal to expand Statute of Limitations for lung diseases other than pneumoconiosis.

Under the Occupational Disease Act the Statute of Limitations for filing a claim for pneumoconiosis is 5 years and 3 years for the rest of the occupational exposure diseases. In Jack Carter v. Old Ben Coal the Appellate Court refused to expand the Statute of Limitations for a claimant suffering from COPD despite arguments COPD was essentially the same disease as pneumoconiosis.  

Petitioner filed his Application four years after his last date of exposure and argued the phrase “coal miners pneumoconiosis” in section 6(c) of the Act should be interpreted to include COPD caused by exposure to coal dust because doing otherwise violates the Equal Protection clause of the Illinois Constitution by treating similar classes of claimants differently without a rational basis. Because the argument concerned an issue of law, the case was reviewed de novo.

The IL WC Appellate Court disagreed with Petitioner and held under the plain meaning of its terms, the OD Act’s five-year Statute of Limitations applied only to “coal miners’ pneumoconiosis” and not to COPD. Although the federal definition of legal pneumoconiosis included COPD caused by coal dust exposure, this fact did not help Claimant here because the Illinois OD Act did not define pneumoconiosis in that manner. So even though the claimant had forfeited this argument by not raising it before the IL WC Commission in the first place, it did not change the fact the OD Act’s limitation of the five year statute of limitation to claims involving coal workers’ pneumoconiosis did not violate the Equal Protection clause.

It is our understanding the court has indicated through its decision that constitutional arguments against the Act will not be very successful.

This article was researched and written by Pankhuri K. Parti, JD. The opinions Pankhuri is voicing are hers and not those of any member of WCLA or its Board. Pankhuri can be reached 24/7/365 for questions about WC at pparti@keefe-law.com.