9-29-14; FedEx Ruling Endangers Mandatory Accident Reporting Rules; "Distraction Exception" in Muni Sidewalk Claims Rev'd by IL Supreme Ct; Monster Legal Fee Award with analysis by Brad Smith and more

Synopsis: Federal District Court Rules FedEx Discharged A Worker in Retaliation for Not Providing Notice Prior to Getting Work-Related Medical Care.

Editor’s comment: We feel sure this ruling will be appealed to the Seventh Circuit Court of Appeals—in our view, it won’t stop at the District Court level and we will have to await the appellate outcome to be sure where it will all go. However, we are certain this ruling “endangers” or calls into question the legal viability of

Ø  Same-shift accident reporting rules or

Ø  Any requirement a worker first advise the employer before obtaining work-related medical attention.

As long-time court watchers and with respect to this august and veteran federal judge, we wholly disagree with the approach used. FedEx did not refuse to have this worker get medical care. We feel it is safe to assume the medical care obtained under the IL WC Act was paid for by the employer. Having read the decision, we don’t feel the employee was fired for needing and getting work-related medical attention. The termination was for not reporting the medical care until after it happened. There is no provision in the IL WC Act which makes it “illegal” for an employer to ask employees to timely report the need for medical care. In fact, there are hundreds of safety and personnel reasons supporting the need for such reporting.

As a rapid example, take the recent controversy about the employee who appears to have been suffering from severe psychiatric concerns. The damage done by him at the FAA radar facility in Aurora was so extensive the center might not be operational for several days. Thousands of flights were cancelled and the cost will be well into the millions. The suspect, who set several fires with rags and gasoline in the basement, managed to shut down all radar and communications systems in the facility. Would it be a bad thing for his employer to require him to report he was getting work-related psychiatric or other medical care?

In Stevenson v. FedEx, No. 13 C 138, published 9/24/14, there was no dispute about the basic facts. Defendant FedEx employed Plaintiff Stevenson as a package handler. As of January 2011, Stevenson was subject to a FedEx company policy that required immediate reporting of workplace injuries whether they required only minor first aid or medical treatment. In addition, FedEx policy required employees wishing to seek medical treatment for a workplace injury first attempt to provide advance notice to management via a free 24-hour phone line or other means. Under this company policy, failure to notify management before seeking work-related medical care could subject the employee to immediate termination.

On January 6, 2011, Stevenson reported to supervisors that he was suffering from a sore back. FedEx generated a First Aid/Injury Report and placed Stevenson on light duty to accommodate his condition. He did not request or seek medical treatment at that time. After working light duty for five days, Plaintiff Stevenson sought medical treatment for his back without first advising FedEx. The physician assistant or PA who examined him provided a “Certificate to Return to Work,” which cleared Stevenson to return to work. Stevenson began his next shift, as previously scheduled, at 10:30 p.m. on January 13 and worked until about 7:00 a.m. and worked light duty as FedEx had not yet returned him to regular duty. At the end of his shift, Stevenson presented the note from the PA, thereby notifying FedEx he had already sought and received medical care for the January 6 incident. Citing the company policy that required advance notice before seeking medical treatment for a prior workplace injury, FedEx terminated Stevenson’s employment.

Stevenson then brought a retaliatory discharge action. FedEx removed the action to the federal District Court. The federal court noted under Illinois law, it is unlawful for an employer to terminate an employee in retaliation for exercising a right guaranteed by the Illinois Workers’ Compensation Act. For claims alleging retaliatory discharge for the exercise of IWCA rights, the employee must prove

Ø  Status as an employee of Defendant;

Ø  Exercise of a right granted by the IL WC Act, and

Ø  Causal relationship between discharge and the exercise of that right.

The federal court indicated the parties agreed Stevenson was a FedEx employee and that a causal relationship exists between Stevenson’s actions and Stevenson’s termination. They simply disagree about whether all of his actions were protected. FedEx concedes the IL WC Act protects Stevenson’s actions in seeking medical care from his own provider and in later filing a Workers’ Compensation claim, but contends that the sole cause of his termination was not the fact he sought medical treatment but rather his failure to notify the company before he did so. The federal judge reviewed the motions of both parties and noted Plaintiff Stevenson did not dispute the cause of his termination: “Plaintiff admits he was terminated on January 17, 2011, for failing to notify his supervisors or management prior to seeking medical attention for a work injury.”

The federal judge also noted her feelings FedEx repeatedly mischaracterized Plaintiff’s argument as asserting his termination was based solely on the fact he sought medical treatment, ignoring Plaintiff’s repeated statements “Defendant unlawfully . . . interfered with Plaintiff’s rights by requiring him to notify his supervisor prior to seeking medical attention for a work injury.” The Court felt the remaining question, then, was whether the IL WC Act grants employees the right to seek medical care for a prior workplace injury without first notifying a supervisor.

Stevenson’s argument rests on the fact the IL WC Act prohibits employers from interfering with an employee’s attempt to exercise rights provided in the statute. The Illinois Workers’ Compensation Act provides, in relevant

part:

(h) It shall be unlawful for any employer . . . to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act . . . . It shall be unlawful for any employer . . . to discharge . . . an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.

Because one of the rights guaranteed by the IL WC Act is the right to seek medical treatment, Plaintiff Stevenson argued the IL WC Act therefore protects the right of employees to secure one’s own medical provider without interference “in any manner whatsoever.” In its briefs, FedEx did not dispute the legal premise of Stevenson’s argument the IL WC Act provides the right to seek medical care without interference. Rather, FedEx asserted its advance notification requirement does not interfere with the right of an injured worker to receive medical care and was justified by legitimate corporate and safety concerns.

FedEx raised several examples of workplace policies that have been recognized by the courts as valid defenses to retaliatory discharge claims, but those polices are easily distinguished from the policy challenged here; none involved action by an employer that imposed any precondition on an employee’s exercise of rights provided by the IL WC Act:

·         In McCoy v. Maytag Corp., 495 F.3d 515 (7th Cir. 2007), the employer terminated an employee who had failed to submit post-treatment status reports during a doctor-ordered leave of absence.

·         In Casanova v. American Airlines, Inc., 616 F.3d 695 (7th Cir. 2010), the employer was permitted to engage in post-treatment investigation and surveillance to determine whether an employee had fraudulently claimed a false injury, and could terminate the employee for lying and refusing to cooperate with the investigation.

·         Goode v. American Airlines, Inc., 741 F. Supp. 2d 877, 893–94 (N.D. Ill. 2010), endorsing the permissibility of a zero-tolerance policy against dishonesty in filing workers’ compensation claims.

In each of these cases cited above, this federal court felt violations of company policy occurred after the employees had already exercised some of their rights under the IL WC Act and in no way interfered with the employee’s ability to obtain medical treatment. In this case, by contrast, this federal court ruled Stevenson could not exercise his right to medical treatment without first complying with a policy imposed by the company that required him to take affirmative actions he would not otherwise have to take. The federal court ruled such actions by the employer were plainly “interference”—an act hampering action or procedure. As we indicate above, we feel any of the three cases above could arguably be ruled “retaliation” for the exercise of workers’ compensation rights—who cares when the worker is fired if the termination is for something that happened at any time during a workers’ comp claim?

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

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Synopsis: Keep Your Eyes on the Sidewalk! Important Illinois Supreme Court ruling on the “Open and Obvious” Doctrine as it relates to your City’s sidewalks. Analysis by Daniel J. Boddicker, JD. 

Editor’s Comment: In a decision that affects all Illinois municipalities, the Illinois Supreme Court determined the issue of whether the “distraction exception” to the open and obvious rule applied in a situation involving a known sidewalk defect.

In Bruns v. City of Centralia, Plaintiff Virginia Bruns stubbed her toe on a crack in the city sidewalk, which allegedly caused her to fall and injure her arm, leg, and knee. Prior to Plaintiff’s fall, she was looking towards the door and the steps of an eye clinic she was attending. Plaintiff testified to her prior knowledge of the sidewalk defect that had developed over a period of several years due to tree roots causing the sidewalk to crack and become uneven. The City was notified of prior trip and falls at the location, but decided not to authorize removal because of the 100-year-old tree’s historic significance.

Plaintiff alleged the City negligently maintained the sidewalk, failed to inspect and repair the sidewalk, and permitted the sidewalk to remain in a dangerous condition. Subsequently, the City filed a motion for summary judgment arguing the defect was open and obvious as a matter of law. Logically, the City further argued it was not required to foresee and protect against injuries from a potentially dangerous condition that was open and obvious.

Plaintiff countered by arguing the City should have reasonably foreseen a pedestrian could become distracted and fail to protect itself against the dangerous condition. The trial court granted the motion for summary judgment.

On appeal, our very liberal Fifth District Appellate Court disagreed and reversed the trial court. That court concluded the City had a duty to remedy the sidewalk defect in a reasonable time frame, but whether the City breached this duty was a fact question for the jury. The Appellate Court stated the key question is the foreseeability of the likelihood an individual’s attention may be distracted from the open and obvious condition, and it is certainly reasonable to foresee that an elderly patron of an eye clinic might have her attention focused on the pathway forward to the door and steps of the clinic as opposed to the path immediately underfoot.

The IL Supreme Court reasoned the only issue is whether under the facts the City owed a duty to plaintiff. It noted the four factors which guide the court on duty analysis as:

Ø  the reasonable foreseeability of the injury,

Ø  the likelihood of the injury,

Ø  the magnitude of the burden of guarding against the injury, and

Ø  the consequences of placing that burden on the defendant.

The Supreme Court further reasoned it also had to consider whether the distraction exception to the open and obvious rule applied. Accordingly, they reversed the Appellate Court and reinstated the trial court’s denial of the claim. In doing so, the Supreme Court held that looking elsewhere does not constitute a distraction. Instead, the essential determination is not whether Plaintiff was looking elsewhere, but why she was looking elsewhere.

This article was researched and written by Daniel J. Boddicker, J.D.  Dan can be reached with any of your questions or concerns regarding municipality defense and/or general liability defense at dboddicker@keefe-law.com

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Synopsis: Here is Another Reason You Need Reasonable Employment Law Defense Counsel from KCB&A! In a Seventh Circuit Opinion, Judge Easterbrook affirmed a local district judge's allocation of $325,000.00 in attorneys’ fees on a recovery of less than $50,000.00 for a violation of the FMLA. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In a recent opinion written by Seventh Circuit Judge Easterbrook, the Seventh Circuit affirmed the District Court's award to the attorney of an employee $325,000.00 in a Family and Medical Leave Act ("FMLA") action, despite the fact the employee's recovery was less than $50,000.00. The District Court applied the principle that hyper-aggressive defendants who drive up the expense of litigation must pay the full costs/fees of the other side, even if the legal fees seem excessive in retrospect.

In Cuff v. Trans State Holdings, Inc., an employee, whom was an airline supplier's regional manager, represented the supplier and supplier’s two air carriers in their dealings with the airline and airport, brought a FMLA action against the air carriers. After extensive litigation, a partial summary judgment motion, and a jury trial, the employee recovered less than $50,000.00. However, the District Court awarded the prevailing employee attorneys’ fees pursuant to 29 U.S.C. § 2617(a)(3), which authorizes attorneys’ fees to a winning Plaintiff.

The Court noted Defendants injected numerous unnecessary issues and arguments into the case. For example, Defendants' lawyers contended Plaintiff was not qualified for FMLA leave because he was not taking prescribed medications. Instead, the court framed the proper issue before it as whether the employee has medical need for leave at the time he requested time off.

Defendants also attempted to present multiple pieces of “after-acquired evidence” at trial, but the District judge sustained objections based on Federal Rule of Evidence 403. Despite his rulings, Defendants failed to make an offer of proof of the proposed evidence. Consequently, the ruling’s prejudicial effects were waived by Defendants’ failure to preserve them through an offer of proof. 

The District Court judge reasoned the attorneys' fees award on the proposition that hyper-aggressive defendants who drive up the expense of litigation must pay the full costs, even if legal fees seem excessive in retrospect. The Seventh Circuit agreed and further reasoned the high total of attorneys' fees was an expected result of the way the defense was conducted. Accordingly, the Seventh Circuit affirmed the award of $325,000.00 in attorneys' fees coinciding with the less than $50,000.00 in actual recovery on the case. 

At Keefe, Campbell, Biery & Associates, LLC, we determine the most efficient and practical defense(s) to defend employment law claims brought against you. Although we always zealously defend our clients, we also keep in the forefront all facets of a claim to give our clients the best service possible. When there are the potential for attorneys’ fees awarded to the victorious party, we always include that factor in our initial assessment of the defense of a claim. If you have an employment law claim brought against you, then  reach out to the employment law defense team at Keefe, Campbell, Biery & Associates, LLC for an initial assessment of the claim.

This article was researched and written by Bradley J. Smith, J.D. Brad can be reached with any of your questions or concerns regarding employment law and general liability defense at bsmith@keefe-law.com.

9-22-14; Is the IL Gov't Apocalypse Drawing Near?; Big Cat Dodges Employment Law Bullet; How IL Judges-Legislators Can Make $1M Per Year of Service and more

SYNOPSIS: Is the Illinois Government Apocalypse Starting? Analysis by John P. Campbell, Jr., J.D.

EDITOR’S COMMENT: Illinois citizens willingness to perpetually fund spiraling government pensions through higher and higher taxes is hitting an apex. We recently saw the Village of North Riverside, IL seek a declaratory judgment allowing them to do away with their Municipal Fire Department. We feel this may be a sign of things to come in our state where municipalities can’t keep up with generous and ever-increasing government “pension” structures. We assure our readers many other Illinois municipalities may be starting similar litigation for the same reasons.

When we reviewed the recent lawsuit filed by the Village of North Riverside in Cook County Chancery Court we learned they are seeking a declaratory judgment from the Court permitting them to “outsource” fire protection and thereby, do away with their fire department. Crazy? Unsafe? Reckless? Well, when you peel back the onion and see the massive pension funding problem faced by the Village, you may come to realize that they have no choice.

It goes without saying, we all want readily available fire/police/emergency services for ourselves and our loved ones. However, there are reasonable alternatives, and as the pleadings in this case appear to accurately outline, a 540% increase in pension funding obligations over the past 10 years is simply unsustainable for North Riverside or any fiscally responsible village/city/municipality. The annual pension outlay per firefighter went from $8K per year in 2003 to $45,474 per year in 2013!

Why? Well, more firefighters are retiring and living longer; well out-pacing their earlier pension contributions. It’s simple math. You can’t fund your personal 401K with $7,500 per year for 20 years and then “withdraw” $40,000 each year for the next 30 years –your 401K would dry up long before. This is, in effect, what is happening to government pensions in North Riverside and many, many other Illinois communities. Something has to give at some point.

Aside from the safety concern with eliminating the department, the Firefighters Union no doubt will argue the “right” to the pension for members. While it sounds nice to have a “right” to endless pension dollars, we can’t help draw a parallel to private bankruptcy, where pension and 401K money is lost where the money simply runs out (Does Enron ring a bell?).

Why is a public pension like a firefighter union pension different? Well, they will be quick to point out the town is not really out of money, they just need to generate more money to feed the pension monster via either

(1) Significant program cuts in other municipal areas or

(2) Greatly raise real estate or other taxes, both now and in future years.

However, most municipal budgets are as lean as they can get since the economic downturn in 2008. As defense counsel for a number of municipalities, we know budgets have been trimmed to the extent possible while still providing basic services to citizens. So what’s left? Your tax dollars folks!

In effect, the only way to “bailout” the pension crisis is to dramatically raise taxes to cover costs. What happens with that solution if folks move away or don’t move to that Village/City due to the high tax cost? This “solution” also pits public employees with these pensions against the remaining private workforce, who will be asked to kick in more of their paycheck to cover someone else’s pension. The private sector worker may pause and think “wait a minute, I don’t have a guaranteed pension for life. Why should I pay into yours?” Not a pretty situation at all. The reason we feel this may be an apocalyptic change is to consider the next 10 years where the cost of such firefighter pensions might follow the same financial curve where the annual pension outlay per firefighter could be $100K or more. We again ask political leaders who support the current status quo, just how we are going to keep this house-of-cards afloat? Last year, both House Speaker Madigan and Senate President Cullerton sent letters to State union leaders for their plan on how to make financial sense of state pensions; we are unaware of any substantive response.

Let’s make one thing clear as well; a good portion of Illinois’ public pension crisis was not caused exclusively by over-generous pension structures demanded by unions. State, County and Local Governments have to look in the mirror as well and honestly ask whether they have adequately met their pension funding obligations over the past two decades or more. This is a lesser advertised but very real problem. One thing not addressed in the pleadings of this case that we reviewed is any mention of the equitable contribution to the pension by the municipality over the past 10-20 years. We would be curious to know if North Riverside met a realistic pension contribution schedule to sustain the health of the fund. This is often a source of great debate and will likely be argued as part of this litigation.

Is there a solution? Well, there are certainly options. The Village of Glencoe, Illinois for example, has had a combined “public safety” workforce for the past 17 years. Their firefighters are trained as police and vice versa. They recognized tremendous savings with this structure and this relatively affluent community has no reported complaints of deficient police/fire coverage. Glencoe may be the model for other Illinois communities struggling with these pension costs like Riverside. Unfortunately, it may take a protracted legal battle to forge such change. We will report on the Village of North Riverside’s efforts down the road.

This article was researched and written by John P. Campbell, Jr., J.D. Please send thoughts and comments to John at jcampbell@keefe-law.com.

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Synopsis: Is it wise to fire an employee who has made multiple, at times well founded, complaints with regard to harassment by co-workers? You may be surprised at the answer. Analysis by Shawn R. Biery, J.D.

Editor’s comment: We consider this an intriguing federal case which provides excellent guidance both to the extent that strong legitimate investigation can provide an excellent basis for multiple protections in defending future related litigation.

In Muhammad v. Caterpillar, Inc., No. 12-1723 (September 9, 2014) the Seventh Circuit affirmed the District courts grant of defendant-employer’s motion for summary judgment in a Title VII action alleging defendant had failed to take appropriate steps to stop plaintiff’s co-workers from subjecting him to sexual and racial harassment and claims for damage after subsequently suspended plaintiff in retaliation for complaining about said harassment.

By way of background, Warnether Muhammad alleged his coworkers at Caterpillar, Inc., created a hostile work environment by subjecting him to sexual and racial harassment and further argued his supervisor retaliated by suspending him after he complained about it. He was provided a right-to-sue letter from the Equal Employment Opportunity Commission, resulting in the suit discussed here. The federal district court however granted summary judgment for Caterpillar noting the company reasonably responded to the complaints of harassment, and no evidence suggested Caterpillar suspended Muhammad because he complained.

The court was clear to confirm they recite the facts in the record in the light most favorable to Muhammad. Suffice it to say, the offensive comments were both racially and sexually charged and came from three different employees, however they appear to have resulted in remedial action by the company after investigation. The company also responded to offensive comments which were scrawled on the walls of the bathroom nearest Muhammad’s with swift action being taken to immediately contact a third-party provider of painting services to have the graffiti painted over on several occasions. As part of the reporting, there was a discussion with Muhammad regarding following the chain of command in submitting complaints. The graffiti problem further was remedied by discussing it with all of Muhammad’s coworkers at a shift meeting, with another incident resulting in each person on Muhammad’s line being individually warned that anyone caught defacing the walls would be fired immediately. No more graffiti appeared.

Roughly six weeks later, an incident occurred that resulted in Muhammad’s suspension.

On that day, Muhammad left his work station during a non-break time to use the restroom, and checked the bid board for postings before returning to his station resulting in suspension pending the investigation of the alleged misconduct by the company. After that internal investigation, the suspension of Muhammad was deemed appropriate. Muhammad filed a grievance through his union representative and was allowed to return to work however was then later suspended a second time and then terminated based on his conduct with his coworkers upon his return. Following the settlement of his grievance of the termination, he returned to work at Caterpillar with no back pay, and was laid off due to a reduction in force in April 2009. He was later rehired at Caterpillar where he remains employed.

Based on incidents of August-October 2006, Muhammad filed his charges of harassment and retaliation with the EEOC, and in June 2009 he received his right-to-sue letter. Shortly thereafter he filed this suit, alleging that he was harassed with offensive comments about his perceived sexual orientation and his race and that Edwards suspended him in retaliation for reporting the offensive graffiti.

The federal district court granted summary judgment for Caterpillar. In rejecting the claim of sexual harassment, the court relied on the decision in Spearman v. Ford Motor Company, 231 F.3d 1080, 1085 (7th Cir. 2000), which held the Title VII prohibition on discrimination based on sex extended only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation. The district court also ruled Caterpillar was not liable for any racial harassment by coworkers because, in the court’s view, the company’s responses to Muhammad’s complaints of harassment were reasonable. Finally, the court concluded Muhammad lacked evidence Edwards retaliated against him for complaining about the harassment.

The Court noted Muhammad’s argument, made for the first time on appeal, that his coworkers would not have harassed a female for her sexual preferences was speculation. At summary judgment, Muhammad did not produce evidence to support his assertions. They also noted that even if they set that problem aside, another more fundamental obstacle blocked Muhammad’s claim Caterpillar was liable for sexual and racial harassment: Caterpillar reasonably responded to Muhammad’s complaints. The evidence suggested there was only one secondary offensive remark and Muhammad admittedly did not report that secondary remark.

As for the graffiti, Caterpillar responded quickly each time Muhammad reported it, and stopped the problem permanently. Muhammad conceded the graffiti never reappeared after the individual warnings. The court accurately noted Title VII requires only that employers take action reasonably calculated to stop unlawful harassment; that requirement does not necessarily include disciplining the employees responsible for past conduct.

With those decisions, it left only Muhammad’s retaliation claim. Title VII also prohibits employers from retaliating against employees for their opposition to unlawful employment practices. However Muhammad only alleged the initial suspension constituted retaliation against him for his complaint of harassment. Caterpillar maintained Muhammad was suspended because he left his work station during a non-break time to check the bid board and when the supervisor Edwards attempted to discuss the impropriety of that action and other concerns with Muhammad, Muhammad responded disrespectfully, refused to talk with him, and walked away from him as he was speaking.

The federal court noted Muhammad made no effort to establish an admission of animus or to otherwise present direct evidence of it, and he failed to present evidence that rises above the type of speculation that is insufficient to survive summary judgment. Muhammad acknowledged he left his workstation during a non-break time to use the restroom, and he checked the bid board to see what jobs were posted in the plant before returning to the station. He conceded Edwards confronted him concerning his use of non-break time to check the bid board. Although he stated he did not walk away while Edwards was speaking to him, his testimony is vague as to what happened. He acknowledged in his testimony he did not want to discuss the situation with Edwards without union representation, and in his response to the motion for summary judgment he appears to employ that as a justification for his refusal to continue the conversation. Whether or not Muhammad walked away, it was undisputed Edwards approached Muhammad with a concern about his work performance, and some conflict arose in the course of discussing the matter.

The evidence submitted by Muhammad indicating the suspension was retaliatory in violation of Title VII was minimal. The court noted there was virtually no evidence, other than the possible temporal proximity, the conversation played a role in the suspension, and the courts have repeatedly held mere temporal proximity is rarely sufficient. There is no indication in the record the chain-of-command conversation was anything more than a reminder as to the proper procedures of the workforce. In fact, when asked in his deposition why he was suspended, Muhammad repeatedly stated either he did not know or he was told it was because of poor performance, not because of his complaint to Johnson. He later stated he believed it may be related to his decision to complain to Johnson directly about the harassment, but that was nothing more than speculation on his part.  Accordingly for multiple reasons, the federal appeals court ruled the district court did not err in granting summary judgment on the retaliation claim as well.

The goal in any similar situation is to ensure the allegations are investigated and to take appropriate action if applicable. A side note derived from a study of this claim is the knowledge that additional protections provided by such appropriate investigation and action can avoid damages for claims which may then be filed in retaliation if the employee is not satisfied with a result or if the investigation reveals some inappropriate behavior by the complaining employee. The decision may be tempered somewhat by the fact this plaintiff returned to work for the employer, however I prefer to believe the court simply decided appropriately on the facts at hand. This article was researched and written by Shawn R. Biery, J.D, MSCC. Shawn can be contacted at 312-756-3701 or sbiery@keefe-law.com.

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Synopsis: How Illinois Judges and Legislators can make more than $1M per each year of service. Do We Want to Pay This Much for Government Workers at Any Level?

Editor’s comment: Our readers asked and here are the answers. Please note everything we outline in this article is completely “legal” but in our opinion, shocking. Right now, Illinois’ full Circuit Court judges with their constitutionally guaranteed annual 3% increase will make $203,770.66. Four years from now, they will be making $222,592,62. In 14 years, their annual judicial salaries will be $299,145.87. 25 years from now, they will be making $414,087.84. This “spiral” won’t stop until the IL Constitution is changed. A traffic court judge can make more than our Governor, Attorney General or any statewide official.

For all the fanfare, you may want to also note only 3 of the 5 Illinois pension programs were “reformed” last year. Nothing about the IL pension “reform” bill passed last year, not a word, made any change to these painfully generous judicial or legislative “pensions.” In fact, the IL legislature couldn’t touch judicial pensions because their pensions are guaranteed in the IL Constitution and require a constitutional amendment to be modified. IL Judges/Justices are vested in their pensions in only 9 years of service. We have no idea who picked that odd number or why. If they vest and get out of the jobs after the vesting time period, neither our judges or legislators put in one full year’s salaries to then be entitled to lifetime “retirement” benefits. Would you contribute $100K to then get $9M back over your lifetime—who wouldn’t? The reason we put “retirement” in quotes above is very few of IL judges or legislators stop working, they just start getting money from us and move into other jobs.

Both retired IL judges and legislators will go through their entire “pension” contribution amount in less than one year after retirement. Upon retirement, a full Circuit Court judge and legislator gets 85% of their highest salary in annual pension payments. Therefore full Circuit Court judges currently retire at pensions of approximately $170,000 per year. In four years, that starting annual pension number will be $178,074.09. In 14 years, $239,316.69. Once their contribution and the state’s match is quickly used up, their pensions are “unfunded” or “de-funded” which means they return to our current taxpayer-paid payroll even though their work is long over.

So, Here is How An IL Judge Can Get $1M For Each Year of Service

·         As we outline, take as an example judge who gets his/her post at age 51.

·         They start working for us on a salary of $170K and rapidly come up to $203K. In nine years of service, they will receive just under $2M in salary.

·         When they retire, they will retire at about $170K or 85% of $203K. In the first ten years of “retirement or from age 60-70, they will receive $2M or so. Total income from us is now $4M.

·         In the next ten years, or from 70-80 years old, they will receive about $2.5M. Total income from us is now $6.5M.

·         If they live from 80-90 years of age, and lots of judges are living that long, they will receive more than $3M in that decade.

·         That means they will have received more than $9M for nine years of judicial work.

Please also note all retired judges and legislators receive fully paid lifetime medical coverage from our tax dollars. The IL Supreme Court just ruled that post-employment benefit is protected by the IL Constitution and can’t be touched for existing/vested retirees. To our understanding, this healthcare benefit is simply a “freebie” on your dime—retirees don’t contribute a penny to this expensive lifetime benefit. Here is a link to consider. Please note the judges/justices in this link retired some time ago; new retirees will get lots and lots more: http://www.chicagonow.com/dennis-byrnes-barbershop/2012/05/retired-illinois-judges-raking-in-gluttonous-pensions/

Please note the vast majority of the money to pay retired judges/justice is coming from you and I and our current tax dollars—yes, we are paying for judges and legislators who retired 10, 20, 30 years ago. Less than 30% of the money for these pensions is coming from the paltry contributions from our past and current judges and legislators. IL Auditor General William Holland confirmed both the judicial and legislative “pension” systems cost IL taxpayers over $100M each in current dollars. We also have to pay the cost of the interest on the money the State is borrowing to fund the “unfunded” amounts. We assure you the $105B in pension debt is gone/spent and will have to be paid back by you, me, your grandkids and their grandkids. That number continues to rise dramatically.

This isn’t sustainable and can’t be made sustainable—who will/can reform it?

We vote all the Illinois government pensions come under scrutiny or investigation. We don’t see that coming from Governor Quinn who we understand is strongly supported with millions in campaign cash coming from folks that want IL taxpayers to keep paying billions for fake pensions for former gov’t workers. Governor Quinn has been in office for six years and the pension deficit was less than $50B when he got the job—it is over $100B and could be over $200B if he is elected and no changes are made to these current and lucrative plans. Governor Quinn’s campaign website makes no mention of needed reforms to improve this pension mess.  Challenger Bruce Rauner is a successful and hard-working businessman and we hope his plans for moving new government workers into 401K plans is strongly considered. This crucial election is in 43 days, folks.

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

9-15-14; What Happens When WC Medical Care is Ruled Wholly Unnecessary?; Should IL Nursing Homes Have Security Cameras?; New Ruling on Municipal Liability for Snow Removal and more

Synopsis: What Happens When The IWCC Finds Medical Bills Unreasonable/Unnecessary?—Thoughts and Comments for IL Claims Handlers/Risk Managers. Thoughts and Analysis by Lindsay R. Vanderford, J.D.

Editor’s comment: We consider this an interesting and positive legal trend in IL WC Law and Practice. Last week there was an excellent WCLA (or IL Workers’ Comp Lawyers Ass’n) Symposium on current issues and rulings involving medical bills. If you have concerns and tough questions about how to best counterattack unnecessary and unreasonable medical care in the IL WC system, send a reply. Some of the key rulings are reported below.

(1)  Implications of Section 8.2(e) – What Happens When the IL WC Arbitrator or Commission Completely Denies Medical Bills?

The first case discussed was Hernandez v. Illinois Tamale Co. in which Petitioner, a line worker was injured when she slipped and fell in soapy water. Petitioner began treatment 2/2/09 and ended treatment 2/11/09 only to re-enter treatment at some point in April 2009. Petitioner underwent an IME on 5/11/09 wherein Dr. Trotter opined Petitioner had reached MMI and could work full duty. This injury occurred before the 2011 Amendments to the Act, but the Arbitrator’s decision was issued after the Amendments became law. Based on Petitioner’s testimony that she had worked full time during treatment and the findings of the IME doctor, the Arbitrator awarded no TTD and 6% MAW. The Arbitrator found Petitioner was entitled to medical care through 5/11/09, the date of Petitioner's IME. The Arbitrator adopted the opinions of Dr. Trotter that additional medical treatment subsequent to 5/11/09 was not necessary. Regarding medical care subsequent to the IME, the Arbitrator found such “medical care was neither necessary nor causally-related to the January 29, 2009 accident . . . The Arbitrator denied all medical expenses incurred subsequent to the Independent Medical Examination. [The Arbitrator specifically ruled] neither Petitioner nor Respondent shall be liable for these bills.”

There was no express statement in the Arbitration award that treatment was excessive or unnecessary under Section 8.2(e). The question is whether IL WC Arbitrators are now impliedly using Section 8.2(e) when there is a finding treatment is unnecessary and/or neither party is responsible. In pertinent part Section 8.2(e) reads, “Except as provided under subsections (e-5), (e-10), (e-15), and (e-20), a provider shall not bill or otherwise attempt to recover from the employee the difference between the provider's charge and the amount paid by the employer or the insurer on a compensable injury, or for medical services or treatment determined by the Commission to be excessive or unnecessary. (2011 Amendment emboldened). As a result, two related medical providers filed a civil suit against their patient in a breach of contract claim in Marque Medicos Fullerton, LLC and Medicos Pain & Surgical Specialists, S.C. v. Bertha Hernandez. This claim is pending before the Circuit Court and we assume but we can’t confirm the Arbitrator’s ruling will be pled and technically effective as a defense in the matter.

Transportation Expense isn’t a Reasonable and Necessary IL WC “Medical Expense”

In Horacio Perez v. Metro Staff Inc., Petitioner alleged a back injury following lifting a 45 pound box and that he felt a pulling sensation and immediate pain. Date of accident was 11/15/10 (pre-amendment). Petitioner was seen by company clinic, given light duty and physical therapies. An MRI was ordered showing DDD, protrusions and mild left lateral recess and neuroforaminal stenosis at L4-5 and borderline left neural frontal stenosis at L5-S1. Petitioner was referred to Dr. Babak Lami, who opined Petitioner was not a surgical candidate. Petitioner began treatment with Marque Medicos in March 2011. Dr. Erickson later recommended surgery and it was performed 6/29/11 and Petitioner was released to full duty thereafter. The Arbitrator found a causal relationship between accident and the onset of symptoms and subsequent condition of ill being.. Respondent was found liable for all unpaid medical bills related to the injury, specifically treatment from Elite PT, Dr. Erickson, Lake County Neurosurgery, Prescription Partners, Specialized Radiology, Quest Diagnostics, Marque Medicos, Marque Medicos Pain & Surgical Specialists and Ambulatory Surgical Care Facility. TTD was awarded and nature and extent was determined to be 22.5% MAW.

Respondent filed a Petition for Review. The Commission affirmed but found Petitioner failed to prove $4,758.00 in “transportation charges” by the medical provider were reasonable and necessary “medical expenses.” They reduced the award for medical expenses by $4,758.00 but remaining bills were to be paid pursuant to Section 8.2 of the Act. The decision made no specific reference to 8.2(e). The 8.2(e) standard requires only a finding of excessive or unnecessary medical services or treatment. Having looked online, we don’t see the patient was sued in civil court for this expense.

Surgery After MMI Findings May Be Risky for Petitioner

In Maria Gomez v. Speedway Super America LLC, Petitioner alleged injury to her low back lifting a 30 pound box of chicken 1/10/11. On 1/28/11, Petitioner completed an accident report and was seen at MacNeal ER. Petitioner began treating with Alivio Physical Therapy Chiropractic. Petitioner continued to treat with Alivio, with noted improvement. By 6/6/11, decreased pain in her lower back was recorded and Petitioner reportedly “felt no pain today.” Alivio PT notes indicated their patient had reached MMI. Petitioner attended an IME with Dr. Goldberg on 5/13/11, who noted normal exam findings. He read the MRI to show no significant pathology and only mild disc protrusions. He concluded Petitioner suffered a lumbar strain, recommended no further care and placed her at MMI. In contrast, Petitioner had an initial consultation with Dr. Ronald Michael on 6/6/11, who noted back pain worse than her bilateral leg pain, pains were severe with sitting, standing and walking; he noted numbness and tingling bilaterally in the lower extremities. Dr. Goldberg issued addendum report stating injections were not necessary, no change in opinion 9/16/11.

On November 10, 2011, in spite of the negative MRI, the MMI finding by Alivio PT and same MMI finding by the IME with Dr. Goldberg, Petitioner underwent posterior lumbar interbody fusion with hardware and discectomy.

Following surgery, Dr. Carl Graf performed another IME on 2/27/12. He concluded there were multiple inconsistencies, no disc herniation on MRI and no acute findings. He opined any and all care and treatment was not related to an injury. Respondent also produced UR reports decertifying injections, discogram, surgery and work conditioning.

The Arbitrator found Petitioner sustained an accident and reached MMI for the accident on 6/6/11, relying on the opinions of Dr. Goldberg, Dr. Graf and Dr. Barnabas placed Petitioner at MMI. The Arbitrator found the 6/6/11 visit inconsistent with Petitioner’s visit on that same date with Dr. Michael, who recorded severe low back pain. The Arbitrator awarded medical expenses only up through 6/6/11.

Petitioner filed a Petition for Review. The Commission specifically found all treatment, including but not limited to, treatment with Dr. Harsoor, Alivio, Rogers Park One Day Surgery Center, Dr. Michael, Metro South, and Oak Park Medical Center was excessive and unnecessary. Pursuant to Section 8.2(e), they found these providers shall not bill or otherwise attempt to recover from the Petitioner for medical services that have been determined to be excessive or unnecessary. The Commission discussed at length the medical evidence suggesting additional care and surgery was not medically indicated and ruled Dr. Michael’s medical opinions unsupported by evidence. The decision specifically referenced Section 8.2(e) in support of its decision to hold harmless both parties. The Commission decided against the providers for treatment prior to 9/1/11.

In our opinion, this is an area of law ripe for review. Arbitration or Commission decisions either to apply 8.2(e) retroactively may have swung the doors to the Circuit Court wide open. With no place to go to collect unpaid medical expenses as these decisions hold neither Petitioner nor Respondent liable, medical providers are seeking other legal avenues to pursue payment. One has to wonder if the same Petitioner attorneys who handled and lost the IWCC claims are going to then represent their clients when civil litigation is started, as part of the outcome of their handling and advice in the claim.

(2)  Payment for Services Not Deemed Covered or Compensable – The Scope of IWCC Settlement Contracts

More often than not, rather than undergoing a full-blown hearing, Petitioners and Respondents may negotiate an agreement to settle the claim. In Kline v. Rovery Seek Company, Inc. (08 WC 050971) just such a settlement was reached. Of note, UR of medical care was completed after the contracts were signed.

After the settlement was entered and approved, in Tiburzi Chiropractic v. Kline, the medical provider for Petitioner Kline filed a small claims suit for non-payment of related medical expenses. In turn, Petitioner filed a 19(g) petition in Circuit Court to arguably enforce the settlement contracts. The Circuit Court judge found the employer made full payment pursuant to the terms of the settlement contract and pursuant to Section 8 of the Act. Thereafter, a November 2012 bench trial was held on Tiburzi’s suit against Kline. Tiburzi argued the private pay agreements of the parties superseded the fee restrictions of the Act in that the Act did not apply in the context of the parties’ contractual relationship and was allowed by the Act. The trial court found that Tiburzi and Kline had a valid and enforceable agreement that was controlling “if allowed under the law.” Trial court awarded Tiburzi $2,010.00 for past due unpaid medical bills, and Kline appealed.

Defendant Kline argued the trial court erred in awarding Tiburzi’s unpaid medical bills because those bills were subject only to the IL WC Act. Tiburzi argued Section 8.2 (e-20) supports the trial court’s ruling that non-compensable bills could be collected from the patient directly. Our IL Appellate Court held Section 8.2(e-20) does not allow for provider to recover for compensable services in excess of the fee schedule but the provider could recover for medical services “not compensable.” In this case, the insurance carrier had paid nothing for 20 cold packs, each billed in the amount of $10. Therefore, Tiburzi was entitled to judgment in the amount of $200 plus costs.

We appreciate your thoughts and comments. This article was researched and written by Lindsay R. Vanderford, J.D. The opinions Lindsay is voicing are hers and not those of any member of WCLA. Lindsay can be reached 24/7/365 for questions about WC at lvanderford@keefe-law.com.

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Synopsis: Will the Proposed IL Nursing Home Camera Law Help Protect Illinois Nursing Home Residents and Workers? Analysis by Bradley J. Smith, J.D.
 

Editor’s comment: On September 8, 2014, Illinois Attorney General Lisa Madigan held a news conference to gain initial backing for a law designed to place monitoring cameras in nursing home rooms. This law would make Illinois the sixth state in the country allowing family members to put cameras in their relatives’ rooms.

Specifically, the proposed law would allow for video and audio monitoring in nursing home rooms. The law would require consent from the residents and their roommates for camera monitoring. Illinois Senator Terry Link (D) Waukegan will draft the bill and is looking for co-sponsors. During the aforementioned news conference, Senator Link indicated he did not believe there would be much opposition to the proposed law. The Health Care Council of Illinois drafted a statement disclosing their desire to protect nursing home residents in any and every way possible. Nonetheless, in opposition, the Health Care Council of Illinois also brought up the issue of HIPAA and privacy violations as they will relate to the proposed video camera law.

Unfortunately, statistics demonstrate the elderly are allegedly abused and neglected at an alarming rate in the United States. With the elderly population growing at a faster rate than any other segment of the population, this means that a significant percentage of United States population is arguably at risk of being abused or neglected on a daily basis. Similarly, there are also many work injuries that come from nursing home staff members.

Determining whether the proposed nursing home camera monitoring law will be successful in curtailing the obvious issues posed requires weighing both the negatives and the positives. On the one hand, the nursing home video camera law might aid families and comfort them by allowing monitoring of their loved ones. Additionally, the cameras might serve as a deterrent for those individuals and staff in nursing homes that might make the poor decision to abuse a resident. Further, the camera law may serve to protect nursing homes in defense of any unfounded claims of abuse and/or neglect. This could limit the nursing home’s liability if a camera can demonstrate exactly what happened in a given situation. Consequently, this could aid in nursing home defense litigation as there is no “outside of the scope” of employment argument for nursing home staff under the Illinois Nursing Home Care Act, 210 ILCS 45/1-101, et seq.

In contrast, the proposed legislation could also be associated with negative consequences. First, Plaintiffs could have issues with pursuing a cause of action when a video recording of the resident demonstrates the alleged abuse or neglect never occurred. Also, Defendants could have a clear liability issue if the video recording demonstrates a lack of attentiveness and possible abuse/abandonment of a resident. An obvious negative would be the invasion of privacy issue to residents, employees, and visitors. In fact, these cameras will likely degrade residents by recording intimate moments of exposure during bathing, medical examinations, or diaper changes. The cameras could also exacerbate the issue of finding qualified nursing home staff as some positions provide lower pay and employees may likely resent the constant supervision. Lastly, the video surveillance could cause an issue with HIPAA, as the video and audio recording devices would record all activities happening within a resident’s room and then be subject to being viewed by people unknown to the resident.

Despite these issues, as previously stated, similar laws were passed in Washington, Oklahoma, Texas, New Mexico, and Maryland. We suspect the Illinois Legislature will attempt to mirror the laws in these five states. The laws in those states allow residents or their guardians to monitor the room of the resident through the use of electronic devices. They also allow residents to choose where in the room the cameras are mounted as well as when they are turned on and off. The statutes further require express written consent of the residents or their guardians as well as the consent of any roommates. Additionally, they include a release in the consent forms absolving the facilities of any liability from the invasion of privacy resulting from the monitoring devices. Lastly, those laws require notice of the surveillance be provided at both the entrance to the facility and the entrance to the resident’s room.

We are of the opinion the legislature will face major hurdles in implementing the proposed camera laws. Particularly, Illinois lawmakers will have to surmount the privacy concerns to mandate video surveillance in nursing homes where requested by a resident or a resident’s family. Moreover, the moderate cost of installing a video surveillance system would place the burden on the nursing home facility and the Assisted Living Facility (“ALF”), and ultimately, on the residents and their families in higher monthly rates. Regardless, since most nursing home and ALF residents are on Medicare and Medicaid, the burden may eventually rest with the taxpayers. Lastly, the potential of unreasonably priced insurance for nursing home facilities and ALFs as a result of any legislation that requires video camera monitoring will likely impact the nursing home facilities and ALFs. If nursing home facilities and ALFs are unsustainable, then this private provision of care could disappear.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding Nursing Home and ALF defense and any other general liability defense questions at bsmith@keefe-law.com.

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Synopsis: Sidewalk Obstruction! Obstruction! Read all about It! Important Illinois Appellate Court ruling on Illinois Municipal Immunity under the Tort Immunity Act. Analysis by Daniel J. Boddicker, JD.

Editor’s Comment: In a decision which clearly effects Illinois Municipalities, the Illinois Appellate Court in the First Judicial District reversed and remanded the trial court and held where a plaintiff alleges a municipality breached its duty to use ordinary care to maintain its property and the public entity invokes section 3-102(a) of the Tort Immunity Act (“TIA”) as a defense, the issue of whether plaintiff was an intended and permitted user is to be determined based upon the property for which the city is alleged to have breached its duty rather than the place where the injury occurred.

In Pattullo-Banks v The City of Park Ridge, Plaintiffs, Lorraine Pattullo-Banks and her husband filed to recover damages for personal injuries she suffered when she was struck by a car while attempting to cross the street. Plaintiff alleged she was walking on a city of Park Ridge sidewalk when she encountered an unnatural accumulation of snow and ice that obstructed her pathway. She further alleged the city of Park Ridge created the obstruction during snow removal operations when it plowed snow from the public streets onto the sidewalk, and consequently, made the sidewalk impassable. Plaintiff alleged because the sidewalk was obstructed, she was forced to cross the street at the point of the obstruction where there was no marked crosswalk. As a result, Plaintiff was injured when she was struck by a car attempting to cross the street.

In defense to the lawsuit, Park Ridge filed a motion for summary judgment based on section 3-102(a) of the TIA arguing it was immune because Pattullo-Banks was not an intended or permitted user of the street where her injury occurred. The trial court agreed and granted summary judgment. The trial court found there was no marked or unmarked crosswalk where Pattullo-Banks was injured. The trial court reasoned a city does not owe a duty to a pedestrian crossing the street outside of any crosswalk pursuant to section 3-102(a) of the TIA.

Upon de novo review, the Appellate Court reasoned the issue of whether plaintiff was an intended and permitted user is to be determined based upon the property for which the public entity is alleged to have breached its duty (the sidewalk) rather than the place where the injury occurred (the street). As a result, the Appellate Court reversed and remanded the matter back to the trial court.

It is important to follow this and other similar rulings that affect the way a municipality should monitor its efforts in the winter to clean its streets and sidewalks. Piling shoveled snow on the sidewalk and obstructing it could subject a municipality to liability for any injury occurring as a result, whether the injury occurs on the sidewalk, or elsewhere. We recommend contacting our firm to discuss your potential liabilities and/or defense of any litigation regarding injuries occurring on your city streets and walkways.

This article was researched and written by Daniel J. Boddicker, JD. Dan can be reached with any of your questions or concerns regarding municipality defense and or general liability defense at dboddicker@keefe-law.com.