11-3-2014; Please Don't Vote Based Upon Propaganda, Illinoisans!; Important Federal Fall-Down Ruling, analysis by Dan Boddicker JD; Important Construction Ruling, analysis by Brad Smith JD and much...

Synopsis: Can Illinoisans Be the Most Gullible of All Electorates? Please Don’t Make Decisions Based Upon Propaganda, Illinois!

Editor’s comment: Thankfully, this is our last KCB&A Update on the topic of the current 2014 gubernatorial election. As we advised, we strongly endorse Bruce Rauner for Illinois Governor and hope our readers vote accordingly before the election ends tomorrow night. Here are some reasons.

Last week, we pointed out the only folks we can figure who might vote for Gov. Quinn are current government workers concerned about future changes to their pensions. We have not heard a single objective reason from any other reader why one might vote for Gov. Quinn. Every reasonable metric indicates Governor Quinn and our state are doing miserably. He has no plan to change anything for the better, that we have heard. As we advised last week, Illinois has

·         Soaring unemployment;

·         A miserable jobs outlook;

·         The worst credit rating of all the United States;

·         $6B+ in unpaid state government bills at any given time;

·         We are 48th in economic status in a recent national study;

·         We have gone from $54 billion in debt to $105 billion in debt in the last five years under Gov. Quinn;

·         We have the second highest real estate taxes of all the United States;

·         Illinois is one of only 12 states with an estate tax which means you, your parents and grandparents may want to move out of Illinois as we get older.

Illinois Income Taxes May Soon Almost Triple Under Gov. Quinn If You Listen to Senate President Cullerton

On top of all that, last week, IL Senate President Cullerton wrote an article for the Chicago Tribune. In short, he bluntly confirmed he wants to bring Illinois income taxes up as high as New Jersey—please note this would effectively triple Illinois income taxes from the value they are supposed to drop to on January 1, 2015. Trust us, if you vote for Quinn, this may happen in about two weeks at the fall legislative veto session in Springfield. The legislation may already be drafted. Senate President Cullerton quoted his own floor speech:

“The fact is that we have been falling behind, in my opinion because of a structural deficit because our income tax rates are so much lower than (those of) other states. We've looked at states like New Jersey…”

Please note New Jersey’s income tax rates are currently at a shocking 8.97%. Senate President Cullerton blithely indicates we need to keep raising income taxes to record levels to “pay our bills.” Well, we hope someone can get into government and start to lower “our bills.” As we have repeatedly advised, we hope Bruce Rauner can come into Illinois government and start to push for and/or make appropriate/reasonable budget cuts and counter the need and drive of Illinois Democrats to continually raise taxes/tolls and fees. In our view, State Democrats keep raising taxes and creating new taxes to pay billions for fake pensions for folks that don’t work for us any more—that isn’t supposed to be “our bills.”

What Might Bruce Rauner Do to Cut Gov’t Costs and Save Taxpayers Millions?

From the perspective of the one state agency we are intimately familiar with, the Illinois Workers’ Compensation Commission, we ask these obvious questions:

      Could we get along with six and not the current nine IWCC Commissioners and their support staff?

      Could we get along with twenty-five or even twenty Arbitrators and their support staff—no matter how good they are, do we need 30 IL WC Arbitrators?

      Could we end the silly “Second Injury Fund” that was effectively replaced by ADA and that has no true value at all?

We don’t want the IWCC to disappear or dramatically change, we just feel it could be more efficient and effective. Would IL WC claims still get resolved in a timely, professional and fair fashion? We don’t know the answer but, as our state has about $6B in unpaid bills, we hope such concepts are explored. Some reasonable cost-cutting would save Illinois business/taxpayers millions off the cost of running this single state agency. When you look at IL government’s 87 other state agencies, we assure our readers a solid administrator could make reasonable cuts with amazing gains for taxpayers, if we vote for Bruce Rauner.

What about Quinn’s Poison/Attack Ads? Can Anyone Really Care About Ketchup on a Hot Dog?

We hate propaganda and feel it is intellectually insulting to the taxpayers and voters of this great state. We hope you are NOT gullible and will reject such offerings. Propaganda is the presentation of facts selectively and sometimes lying by omission to produce an emotional rather than rational response to the information presented. Please note Gov. Quinn’s various Poison/Attack Ads are almost all baloney, balderdash and blarney. If you aren’t aware, there have been complaints and tweets and instagrams all over the web about Candidate Rauner ordering a hot dog with mustard and ketchup for a staffer! Eeek! That issue indicates the level of silliness that has stained this election. Here are thoughts on other senseless and misleading attack ads:

1.    The tiny baby you see on TV wasn’t around for the more-than-a-decade-old drug price debate you hear in the attack ads. Issues were raised by the FTC about drug pricing and competition among drug companies from 2002 to the sale of the company in 2009. The FTC lost their lawsuit and a class action suit was later settled, terms not disclosed. Nothing illegal occurred, no laws were broken and no one went to jail. We agree the wildly varying price of the same medicine across the globe should be something the Feds should analyze—that said, it has nothing to do with Illinois government or this election. Pat Quinn had no role of any kind in dealing with or regulating drug prices or competition. In our view, the drug price and competition debate from more than a decade ago doesn’t say anything about someone’s fitness to be Governor, in any way.

2.    The lady you hear about that Bruce Rauner was going to “bury” wasn’t buried and is doing well, thank you. Her name is Christine Kirk. Ms. Kirk was fired in 2001, the start-up company quickly failed and lawsuits were dismissed and/or settled. Ms. Kirk didn’t testify about the hearsay statements used in the ads and she refused interviews. FYI, Gov. Quinn has rapidly and rudely fired lots and lots of folks including former IL WC Arbitrators and the poor lady who was running the IL Dep’t of Transportation when his hiring scandals were recently discovered.

3.    The poor treatment of residents in a Florida nursing home from 2002 attributed to Bruce Rauner is a complete joke. Please note Governor Quinn also is arguably on the “board” of all state-run Illinois nursing homes, as our Governor. Across our state, there are about 6,000 formal nursing home complaints lodged annually against IL gov’t-run nursing homes. In the six years Pat Quinn has been our governor, simple math indicates there would have been 36,000 nursing home complaints lodged against his government. We don’t feel either Gov. Quinn or Bruce Rauner are directly or even minimally responsible for the day-to-day operation of any of these nursing homes complained about.

Our problem with listening to or voting based on propaganda is you are certain to encourage more propaganda. We hate to see poorly constructed and misleading propaganda being broadcast over and over, as if we were all stupid. We consider these misguided attacks a reason to vote against the propagandist and not the opposite.

But Can’t Bruce Rauner, as Governor, Completely Change our Lives?

Actually, no. Please calm down and understand he is a trend-maker but won’t have complete power. There is no question Bruce Rauner will be a governor without voting control of the IL State House or Senate. He can have an impact but he will have to work in a bipartisan fashion to make progress. He can let us know a solid path to follow. He can slow or stop silliness from State Democrats who would have to override his veto to pass laws. We think that is a very good idea for our state.

We join with every major news source in and outside Illinois to endorse Bruce Rauner for Illinois Governor. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Don’t slip up! Don’t miss this business friendly ruling presenting a road map to help you protect your business from an invitee’s slip and fall. Analysis by Daniel J. Boddicker, JD.

Editor’s Comment: In a decision directly affecting Illinois businesses, the United States Court of Appeals for the Seventh Circuit, affirmed the Federal District Court’s granting of summary judgment and held a business invitee who slipped on water on defendant’s floor failed to show a breach of duty.

In Zuppardi v Wal-Mart Stores, Inc., Plaintiff Zuppardi walked down an action alley, which is a highly trafficked main aisle of the store. She did not see any other customers or store employees. Ms. Zuppardi slipped and fell in a puddle of water, without knowledge of how and when the water accumulated. She further claimed there were no warning signs or caution cones around the puddle. Zuppardi further alleged there were no track marks, footprints, or trails leading to or from the puddle.

Wal-Mart employees were required to follow policies and procedures, including the conducting of regular safety sweeps of the store with a focus on high traffic areas. The employees were tasked with monitoring the action alleys and scanning for unsafe conditions while performing their other job duties. Upon encountering a spill, employees were required to stay with it until removed. All employees carried a “towel in pocket” to clean up any discovered spill.

The Court noted in Illinois, businesses owe their invitees a duty to maintain the premises in a reasonably safe condition to avoid injuring them. For a breach of that duty, the court noted liability can be imposed when a business’s invitee is injured by slipping on a foreign substance on its premises if the invitee establishes

(1)  the substance was placed there by the negligence of the business;

(2)  the business had actual notice of the substance; or

(3)   the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the business had constructive notice of the substance.

The Court reasoned to create a triable issue of fact with respect to placement of the substance by Wal–Mart, Zuppardi needed to present some evidence showing the substance was more likely placed on the premises through Wal–Mart’s negligence rather than a customer’s potential negligence. To prove the defendant business, as opposed to a third person, created the dangerous condition, Illinois courts have required the plaintiff to (1) show that the foreign substance was related to the defendant’s business and (2) “offer some further evidence, direct or circumstantial, however slight, from which it could be inferred that it was more likely that defendant or his servants, rather than a customer, dropped the substance on the premises ...”

The Court found Zuppardi simply offered evidence she slipped on something that happens to be sold by Wal–Mart. Consequently, the Court reasoned such evidence fails to support an inference that Wal–Mart caused the spill. The Court stated constructive notice can be established under Illinois law by either presenting evidence that (1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care, or (2) the dangerous condition was part of a pattern of conduct or a recurring incident.

The Court confirmed where constructive knowledge is claimed, of critical importance is whether the substance that caused the accident was there a length of time so that in the exercise of ordinary care its presence should have been discovered. Absent any evidence demonstrating the length of time the substance was on the floor, a plaintiff cannot establish constructive notice.

The Court noted Wal–Mart’s internal policies and procedures for monitoring for spills and other hazardous conditions appropriately addressed the threat of these issues by requiring Wal–Mart employees to monitor the “action alleys,” to be on the lookout for unsafe conditions, and to stay with any found spill until removed. The court confirmed there is no bright-line rule designating the requisite time to establish constructive notice, and noted periods in excess of ten minutes had failed the test. The Court held a few minutes was not enough time to give Wal–Mart constructive notice of the puddle.

The Court discussed Zuppardi’s argument that pursuant to Wal–Mart internal policies and procedures, employees need to monitor the “action alleys” of the store continuously during times of increased customer traffic, and Zuppardi’s interpretation this store-specific policy creates a legal standard of ordinary care requiring such continuous monitoring. However, the court rejected said argument as it would require the continuous monitoring and patrolling of a store’s safety conditions that Illinois courts have summarily rejected. The Court held although Wal–Mart’s internal policy requires employees to continuously monitor the “action alleys,” this goes above and beyond the duties required of businesses by Illinois courts and does not create a new legal standard of ordinary care requiring the same.

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

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Synopsis: How Much Control is Too Much? In a recent important opinion for the IL construction industry as it relates to general contractor liability, the IL 1st Dist. Appellate Court reversed summary judgment holding the general contractor exercised sufficient control to create a genuine issue of a material fact to be resolved by the trier of fact. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In a ruling we believe is significant as it relates to defense of a general contractor in a negligence action, the First District Appellate Court determined since there was sufficient evidence to show defendant had more than a general right of supervision and was potentially subject to liability under section 414 of the Restatement (Second) of Torts, the trial court’s entry of summary judgment was in error. Specifically, the Court found that Defendant’s safety manual explicitly prohibited the use of stilts by a subcontractor’s employees, and further Defendant had the authority to stop unsafe work and order it remedied. In Lederer v. Executive Construction, Inc., Plaintiff was walking on stilts and tripped and fell over some exposed and unprotected conduit protruding from the floor in the room where he was using the stilts to work on the ceiling.

The trial court entered summary judgment for Defendant on the basis that it did not owe a duty of care to Plaintiff and was not vicariously or directly liable under section 414 of the Restatement (Second) of Torts. Additionally, the trial court found that Plaintiff failed to procure evidence that Defendant had notice of the alleged dangerous condition. On appeal, the First District analyzed the general contractor Defendant’s control. Particularly, the Court reasoned that Section 414 of the Restatement (Second) has carved out a “retained control” exception that “provides for both vicarious and direct liability, depending on the degree of control that the Defendant retains over its independent contractor.

Thus, a general contractor may be held vicariously liable for the subcontractor’s negligence “under the principles of agency where the employer retains control over the operative detail of any part of the contractor’s work.”  Alternatively, the Court reasoned Defendant might be found directly liable “if the employer retains only supervisory control, i.e., power to direct the order in which the work is done, or to forbid its being done in a dangerous manner, unless he exercised supervisory control with reasonable care.”  In applying the aforementioned reasoning to Defendant’s alleged control, the Court reversed the trial court’s ruling. Specifically, the Court held there was sufficient evidence based on the undisputed facts for the trial court to find as a matter of law Defendant has more than general rights of supervision, and was therefore potentially subject to liability for Section 414. 

This decision furthers the “in charge of work” factors from the repealed IL Structural Work Act. As the Plaintiff’s bar has used the “control” of work pursuant to Section 414 of the Restatement (Second) of Torts to “resurrect” the Structural Work Act in a modified format, this decision appears to further that goal. Essentially, the Court applied nearly identical factors to determine Defendant exercised sufficient control pursuant to section 414 of the Restatement (Second) to create an issue of fact, forcing Defendant to defend itself before a jury of its peers. 

If you are in need of counsel for your general contractor construction work, then consider the zealous defense attorneys at Keefe, Campbell, Biery & Associates, LLC. We stay abreast of all current case law to keep you fully apprised of your likelihood of success or otherwise in the legal matters you face. We also provide our clients with detailed liability assessments at the onset and regularly throughout litigation. 

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

10-27-14; The KCB&A Monday Law Update Endorses Bruce Rauner for Illinois Governor and more

Synopsis: The Keefe, Campbell, Biery & Associates Monday Law Update Endorses Bruce Rauner for Illinois Governor.

Editor’s comment: While we have tried to remain as bipartisan as possible throughout this campaign, we feel we have to make a clear stand on where our state and its taxpayers should go in this crucial election. It is our strong feeling our state is at a crossroads with this administration and incumbent Democratic leaders pointing our state government to economic failure or collapse, like Detroit. We note President Obama, Vice-President Joe Biden, and the Clinton family can come to Illinois to raise millions but we didn’t hear any answers to the hundreds of questions about why Illinois is such a mess and how to fix it. We feel there are very few objective reasons to vote for incumbent Governor Quinn and ample reasons for any interested taxpayer to vote for challenger Bruce Rauner.

This week, we reviewed a 77-page warning from the nonpartisan Civic Federation of Chicago on our current IL state budget. This is the budget our Democratic legislators already passed and Gov. Quinn signed into law for the fiscal year that started on July 1, 2014. You will note under this administration, Illinois gov’t is still in miserable financial shape. This administration’s array of tricks and “creative” accounting will have taxpayers' unpaid bills growing dramatically. And this year's budget hides bombs and shocking surprises that are going to detonate on IL taxpayers soon. The budget is designed to protect Quinn and incumbents during the election only—they will then deal with what they have done to us when it is too late to take any effective action to remedy it. If you have concerns about trusting our leaders in Springfield, read this scathing report.

The Civic Federation report clearly demonstrates how Democrats in Springfield are trying to hide their decisions and not further enrage taxpayers. As you consider your vote, keep these Civic Federation bullet-points in mind:

·         "General funds expenditures appear to decline by $1.1B from $36.8B in fiscal year 2014 to $35.8B in fiscal year 2015, but actually increase by $528M due to shifting of funds from year to year among state accounts."

·         Hidden in the shifting spending increases: a new school in Multimillionaire Speaker Mike Madigan's district at a cost of $35M when our State can’t pay its bills.

·         Despite spending growth, this budget underfunds agency costs by $470 million, chiefly for the state Departments of Human Services and Corrections and for mental health grants.

·         This year Illinois' general funds will receive $4.5 billion from Washington, much of it for Medicaid. “State-source” revenues will total $30.6 billion. Of that total, state gov’t pension costs will consume 1 of every 4 dollars, or 24.7% of the total.

·         Worse, IL taxpayers' pension contributions "are expected to increase sharply in fiscal year 2016.” Why? Because expected return on pension investments is comically low. Governor Quinn is doing nothing to improve investment returns.

·         The current budget reverses course from two years in which the state began to reduce its backlog of unpaid bills. Unpaid state bills are projected to rise this year from $6.0 billion to $6.4 billion. Gov. Quinn has been a delinquent bill payer for all six years.

·         This year's budget relies on borrowing $650 million from the state's Special Funds — debt that has to be repaid within 18 months. That's likely to crimp future spending on education, health services and other state government categories.

Governor Quinn's insistence on spending tomorrow's dollars today is one reason all three major bond rating agencies rank Illinois as the nation's least creditworthy state. Each agency also attaches a negative outlook to Illinois, meaning all three will almost certainly further downgrade our state's harmful credit rating even more. Please understand the awful credit rating of the Quinn administration isn’t a partisan/political view—it is simple math from three separate rating agencies. And it costs you and I more money to borrow. Standard & Poor's warned this current budget "is not structurally balanced and will contribute to growing deficits and payables that will likely pressure the state's liquidity." In shorter terms, Gov. Quinn is ignoring the approaching gov’t meltdown.

We ask our readers for a single objective reason someone who isn’t receiving or on a track to get a state government pension would vote for Governor Quinn. Illinois has a miserable unemployment outlook with jobs and people leaving Illinois in droves. As we advised last week, our state was ranked 48th out of 50 states in economic outlook—Governor Quinn can’t make lame excuses about a recession that all our sister states also dealt with. Governor Quinn was going to end the tollways and make every road into a freeway—Oooops, he then almost doubled your tolls. Gov. Quinn has already promised to retain the highest income tax increase in IL history in place, despite lying to us about having it automatically go down at year-end. Governor Quinn supports raising our highest state income tax rate to 8% and, if he wins, we expect that to start to happen in about three weeks. Governor Quinn tried to come up with phony property tax relief which failed and we assure our readers your property taxes are going to skyrocket across the state. Governor Quinn’s hiring practices have been questioned at IDOT and other state agencies—Illinois taxpayers are now going to have to pay for a federal monitor of Governor Quinn’s hiring practices.

Do We Really Want a Substantial Tax Increase to Pay for Spiraling Compensation for Folks Who Aren’t Working For Us Any More?

When you consider one out of every four Illinois tax dollars are going to folks who don’t work for our government any more, it is hard not to get mad. The current “fake” pension setup includes a 3% annual kicker that means we will rapidly pay more money to retired workers than they made while employed. For an example, Hank Bangser who retired about 7 years ago as the New Trier School Superintendent is getting an IL pension of around $300K a year annually with around $200K of that as fresh money coming from you and me. Yes, you are right, he gets millions of dollars from IL taxpayers not to work here. His annual pension 3% compound interest increases are currently more than $10K every year and will spiral and go up for life. He is around 57 years old. If he lives to be 87 and you do the math, we will owe him over $700K a year! http://articles.chicagotribune.com/2011-01-29/news/ct-met-superintendent-pensions-20110129_1_pension-rules-public-school-pension-state-pension Please note Hank isn’t actually retired and is working in the same job in California and probably making a combined income of over $500K a year. There are lots and lots of wealthy IL state pensioners getting six-figure pensions with compounded 3% increases out there all over our country. The only way our taxpayers will stop owing these people mega-money is when they eventually die off, as if they were feudal kings, queens and lords. The money to pay the staggering lifetime compensation could be going to social programs and women’s issues and psych counselors but, based on the IL Constitution created by Multimillionaire Speaker Mike Madigan, it has to be spent on former state workers. The only way to change this rapidly growing whirlpool for our tax dollars is to change the IL Constitution (not likely) or change benefits for incoming workers. We are sure Gov. Quinn won’t do so, as his money and support are coming from unions who won’t allow it. Please remember the gov’t pension debt was $54B under Quinn in 2009 and it is $105B and growing even faster now. That money has already been spent and you and me and our kids and their kids will have to pay it back along with the interest charged on it.

Our IL Supreme Court also ruled this year former Illinois state workers are also entitled to taxpayer-paid lifetime healthcare. There was no façade or pretense about the workers contributing a penny toward that immensely expensive post-employment benefit. Former IL government workers appealed all the way to the Supreme Court about being asked to contribute a measly 1 or 2% of the cost and they won—we have no idea why our tax dollars are going to provide “free” or taxpayer paid health care benefits to folks like President Obama and former Mayor Daley when they haven’t served in IL state government in over a decade. When we consider and weigh the amount of unfunded post-employment benefits for former IL state workers it is hard not to consider them the biggest mooches in Illinois history. If you don’t like the term “mooch,” please note our judges/justices and legislators can fully vest in their six- and seven-figure pensions without contributing one full year’s salary. They get it all back before the end of the first year of being on a fake pension and then get millions more with taxpayer-paid healthcare for life. Illinois taxpayers can’t and shouldn’t have to pay our former government workers this outrageous largesse.

Bruce Rauner Positives

For all the silliness in the attack ads about Bruce Rauner, we don’t think our readers understand how cool this guy and his wife Diana are. He is not your typical IL state Republican. Did you know there is a Rauner College Prep in Chicago? http://raunercollegeprep.noblenetwork.org/about/history-and-campus-overview. We think that is a pretty cool thing. Please note he didn’t use your tax dollars, their family contributed their own money. In contrast, we assure you Multimillionaire Speaker Mike Madigan hasn’t yet contributed anything from his own pocket to the new school in his district that we mention above—he is quietly using your money. We are also certain Multimillionaire Speaker Mike Madigan legally “rigged” this election by gerrymandering election districts across the state—just because he legally can and did do so doesn’t make it morally or ethically right. We feel Illinois needs a two-party system and Gov. Quinn’s administration is fighting to end it.

Please also remember Bruce Rauner and his great wife Diana aren’t “using” their charitable donations and activities in their campaign. Again, we consider that to be a very cool thing to keep off the map but we don’t know if our readers know how good for education, economics and jobs this guy is.

1.    Rauner was named the 2008 Philanthropist of the Year by the Chicago Association of Fundraising Professionals.

2.    In 2003 Rauner received the Daley Medal from the Illinois Venture Capital Association for extraordinary support to the Illinois economy and was given the Association for Corporate Growth’s Lifetime Achievement Award.

3.    Rauner and his wife Diana received the Golden Apple Foundation’s 2011 Community Service Award.

4.    Rauner and his wife Diana have been a financial supporter of many great projects including

1. 1. Chicago’s Red Cross regional headquarters,
   2. YMCA in the Little Village neighborhood,
   3. Six new charter high schools,
   4. An AUSL turnaround campus,
   5. Scholarship programs for disadvantaged Illinois public school students, and
   6. Achievement-based compensation systems for teachers and principals in Chicago Public Schools.

Bruce and Diana Rauner variously provided major funding for the construction of the Rauner Special Collections Library at Dartmouth College, endowed full professor chairs at Dartmouth College, Morehouse College, University of Chicago and Harvard Business School, and was the lead donor for the Stanley C. Golder Center for Private Equity and Entrepreneurial Finance at the University of Illinois. Bruce Rauner also serves on the board of the National Fish and Wildlife Foundation.

More Bruce Rauner Potential Positives – A Solid Business Approach to Illinois State Government May Be Coming!

If you don’t know what Bruce Rauner does for a living, he is a “Shark Tank” guy. He looks at businesses and turns them into well-run machines. He can do that for our IL Government, if we let him. Please vote for a guy as smart and as sharp as this guy is. If you are comparing the intellects and business acumen of these two candidates, Bruce Rauner wins by a light year. The defense team at KCB&A suggests you select the smart, successful private-sector candidate over the clunky political hack whose intentions are more aligned with victory than personal conviction and good government. You also don’t have to feel any remorse for Pat Quinn if he loses, as he is eligible to immediately retire with an annual fake pension starting at approx. $160K plus healthcare.

If you want some easy, outside looking in “better-government” thoughts on how Governor Quinn is wasting your money and how Bruce Rauner could easily and quick save IL taxpayers zillions of dollars, here are a couple:

·         IL has “Tow-Trucks-that-don’t-tow-trucks.” Those “Minutemen” tow trucks you see on our highways aren’t allowed to tow anything. They will bring you gas if you run out and they will provide guidance or call a private tow service for you but they won’t and can’t give you a tow. Try to understand how stupid it is that our state officials keep buying expensive vehicles they don’t and won’t allow to be used. Couldn’t our IL State Police do exactly the same thing our “Minutemen” do and save millions?

·         IL State Government has 88 agencies with 88 department directors and 88 assistant directors and 88 HR heads and 88 information departments and lots of redundancy. Couldn’t we consolidate them to 44 agencies or 22 agencies and save millions?

·         IL is the Land of Little Governments—Illinois leads the entire U.S. in expensive and redundant mini-governments at 6,963 to include irritating and duplicative government bodies like grade school districts, community college districts, water reclamation districts, mosquito abatement districts, park districts, forest preserve districts, townships and counties and everything else. Lots of these districts have their own duplicative and do-nothing police departments. Some of the workers get local pensions and some of the workers get state pensions—all of the pensions have challenging funding. Most Illinoisans have 10-20 taxing districts on our bills—your money is going to all these government workers to fund their retirements and not your retirement. We are used to too much government and, for the most part, don’t have any idea who all these folks are or what they do for us. All of it runs through Springfield and our Governor could work to minimize all this redundancy, if he were so inclined.

·         Please note four-five years ago, State Treasurer Rutherford and Comptroller Judy Baar Topinka both openly agreed their state agencies were redundant/duplicative and one of them could be shut down at an annual savings to Illinois taxpayers of about $12M. They both agreed those new-fangled “computers” ended the need for one of the agencies. Under Governor Quinn, nothing has happened about it. http://www.wrex.com/story/13029972/treasurer-comptroller-could-be-one-office-in-illinois.

·         Similarly, the Lieutenant Governor job in Illinois is a complete waste of everyone’s tax dollars. Current IL Lieutenant Governor Sheila Simon appears to be seeking a different office so she finally has something to do to keep busy. Why not save additional millions and simply end that office?

·         Automate Illinois tollways and save over $100M a year—Automated tollways have been around for over thirty years. If you want an example, travel the Indiana tollway—you can’t give money to a human. In contrast, Illinois spends over $100M each year on toll-takers’ salaries and overtime. In our view, that tax money is completely wasted and the boring task of taking coins and making change need to be phased out. Please note the toll-takers who hang around long enough then get lifetime healthcare coverage and fake pensions that pay them more than they made while working.

What Will Bruce Rauner Mean to the Illinois Workers’ Compensation Industry?

There are many players with a role in the IL WC system, including adjusters, risk managers, attorneys on both sides, healthcare providers, hearing officers and lots of support folks. We are sure Bruce Rauner doesn’t have major WC changes in mind but there are a lot of simple minor changes we feel could be made in a “good-government” model. Please also remember Bruce Rauner won’t have the power to change the IL WC Act as he won’t have control of the Illinois legislature—he may be able to appoint an IWCC and Arbitrators who might more closely follow the actual wording of the Act and put an end to all the “activism” and unusual definitions.

To the Petitioners’ attorneys in the IL WC system who are running around like the “sky is falling” if Bruce Rauner gets the governor’s job, we like to point out Illinois unemployment has stayed at high levels and there are almost no new jobs in important industries like manufacturing and construction coming to IL under Gov. Quinn. Newly filed IL WC claims have dropped by half under this administration and the one before it. If the downward trend of fewer and fewer IL jobs continues, there isn’t going to much need for the IWCC or Petitioners’ lawyers. In our view, both sides of the bar are better served if Illinois becomes a much better place for business and builds new jobs and we get our state government back on the rails and start aggressively competing with our sister states.

Summary

The election is ongoing—please go vote right now! It ends in eight days. We join with just about every major news outlet in and outside our state to confirm our choice is clearly Bruce Rauner for the best interests of our state. But please, please vote for the candidate of your choice. Neither candidate approved this message. We appreciate your thoughts and comments.

10-20-14; The "Compens-Ebola-ty of the West Africa Virus under WC/OD; Retaliatory Discharge Ruling of Note, analysis by Matt Gorski; More Failed IL WC Reforms and much more

Synopsis: What Is the “Compens-Ebola-ty” of the New Deadly African Virus in Workers’ Compensation?

Editor’s comment: We were in Dallas, Texas last week for the D/FW RIMS meetings and everyone is talking about the Ebola virus and its impact on workers’ compensation and possibly general liability for U.S. companies. As background, the Ebola virus is named after the river in the area it was first isolated in 1976. The first known cases in the United States were discovered in 1989. The condition of infection can be termed by doctors and scientists as “extreme amplification” where a host can be effectively consumed by a virus that grows so fast it can be seen growing by the human eye. Once it has been contracted, the fatality rate is about 70-90% although some progress has been made in counter-attacking it. There is no vaccine but scientists are working hard to find one.

Our readers are asking us when this medical condition would be compensable under workers’ compensation—to be academically accurate, the condition is a disease and therefore the focus would be on “exposure” and not an accident. Such a condition would be compensable under the appropriate workers’ compensation or occupational disease act. Some states, like Illinois have separate but parallel legislation; some states cover both accidents and exposures under the same act.

Two tests must be satisfied before an illness or disease can be considered occupational and thus compensable under WC or OD Acts.

First, the exposure causing or leading to development of the disease must be “occupational,” meaning it arose out of and in the course of employment.

Second, compensability of an exposure is wholly dependent upon the occupation and general or specific tasks of the employee. Illinois, Indiana and most states require the exposure arise out of or be causally connected to conditions “peculiar” of specific to the work.

To arise out of and in the course of employment is a function of the general or specific work tasks of the employee. Qualifying an exposure as occupational is the burden of the worker but the incidence and prevalence of a disease in many work populations can’t be ignored by employers. Either way, the employee or their counsel have to demonstrate they were at work when they were exposed to and later contracted the illness or disease.

Defining an exposure leading to illness or disease as compensable may ultimately require the Arbitrators/hearing officers to analyze expert medical opinion and admissible lay evidence. There is no singular test that can be applied to every case to declare an illness or disease as compensable or non-compensable, so most claims are judged on their own merits and circumstances. Please note the defense team at KCB&A has numerous experts on occupational diseases/exposures and we are happy to assist you in locating a great expert on your claims—simply send a reply.

Medical opinion indicating the conclusion an exposure leading to disease is occupational is not necessarily based on the medical condition but on the facts surrounding the patient’s sickness. Expert physicians and scientists will investigate:

• The timing of the onset of symptoms in relation to work performed.
• The nature of the work performed.
• Co-workers with similar exposures or diseases:
• Whether the exposure/disease is common to workers over a period of years in that particular industry;
• If the employee has a personal proclivity that may lend itself to the illness such as asthma or an allergy; and
• The habitus, age, personal habits and medical history of the worker. There is no question workers in poor physical condition, such as obesity, diabetics, tobacco/marijuana smokers and questionable family medical histories may be more likely to contract a disease or illness, clouding the causal relationship between occupation and disease.

How About Ebola?

Judged against the factors as we understand them Ebola is a very rare workers’ compensation exposure for U.S. workers. Unless it can be demonstrated the employee has an increased risk of contracting Ebola because of the nature of the job, this virus is not occupational and therefore won’t be compensable for most workers. Employees working in the healthcare and transportation industries may be able to prove such increased risk as they have little choice but expose themselves to this deadly and incurable virus as a regular part of their job duties. Beyond healthcare and transportation workers, not many workers may qualify for workers’ compensation or OD protection due to casual or random exposure to Ebola.

We feel many Arbitrators/hearing officers may apply more of a “reasonably foreseeable” standard which then opens up the potential for a raft-load of ancillary claims such as construction worker doing a renovation in a medical facility treating Ebola patients, regular business travelers, maybe even airline maintenance workers who clean the specific airplanes.

In the general liability field, limitation of liability clauses are apparently in increasingly wide use and most often cap or limit damages for which a plan or plan sponsor may be subject to liability. In California, for instance, courts appear to consider whether a limitation of liability provision violates public policy, or is otherwise unenforceable or whether the party seeking the limitation uses a standardized contract that doesn’t allow a covered individual to pay additional fees for protection against negligence or other torts which arise.

At present, the numbers of folks in the United States suffering from the disease remain very small and pale in comparison to other major diseases and causes of death in the U.S. Let’s hope that experience continues. If you need help investigating and defending occupational disease claims in the future, send a reply.

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Synopsis: Contract Employees In IL Not Provided Retaliatory Discharge Protections. Analysis by Matthew Gorski, J.D. 

Editor’s Comment: We consider this a very important Illinois Appellate ruling on applicability of a contractual employee’s right to bring a retaliatory discharge action. The First District Appellate Court reversed a jury’s award of a whopping $1,000,500.00 to an assistant principal on the basis that a contractual employee is not entitled to the same protections as an at-will employee. At Goodlow Magnet School the principal and assistant principal signed a four-year employment contract which outlined the rights and duties of both employer and employee. At the beginning of the new principal’s four-year term, the principal decided to select a new assistant principal and not retain the existing assistant principal.

In 2001 the principal was Patricia Lewis and the assistant principal was Kenneth Taylor. As part of their various duties, they were required by law to report any suspected child abuse. One day, Lewis was sick and Taylor was sitting in as principal for Lewis. An incident occurred where a special education teacher allegedly kicked a second grader in the back of the leg. Another teacher reported it to Taylor. Taylor then reported it directly to the police after the teacher refused to report it. Lewis was upset about Taylor’s actions of reporting the incident to the police because he never conducted a fact-finding inquiry and the actions by the special education teacher were actually authorized by the second grader’s parents.

At the end of the term, Taylor’s contract was not renewed and he was effectively “terminated.” He filed suit against the school board, alleging a common-law claim for retaliatory discharge and a claim for violation of the Illinois Whistleblower Act. To establish a retaliatory discharge claim, an employee must prove that (1) the employer discharged him, (2) the discharge was in retaliation for his activities, and (3) the discharge violated a clear mandate of public policy. This is an act that mostly protects individuals who file a workers’ compensation claim or report illegal conduct by an employer or its agents. The jury found for Taylor on his retaliatory discharge claims and awarded him the substantial verdict listed above. 

On appeal, the First District Appellate Court held retaliatory discharge only encompasses protection for at-will employees, not contractual employees. Since Taylor had a four year contract, he was considered a contractual employee, and therefore when the contract simply wasn’t renewed, he was unable to recover for retaliatory “discharge” or non-renewal.

We recommend Illinois employers consider the instant case, and various other factors into consideration when deciding to make your employees either contractual or at-will. There are positives and negatives for both types of employees. It is also always important to be clear and concise as to whether your employees are at-will or contractual employees.

This article was researched and written by Matthew G. Gorski, J.D. Matt can be reached with any of your questions or concerns regarding employment law, general liability defense, and workers’ compensation defense at mgorski@keefe-law.com.

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Synopsis: Was it a Real WC Reform or Another Fake Illinois “De-form?”

Editor’s comment: The Governor’s election ends in 15 days, folks. Your editor already “early-voted” and we recommend you vote as soon as possible and avoid the rush. We are trying to report the facts and remain as bipartisan as possible but you might note a slight shift to our reporting.

In 2011, we note there was a section of the new law which supposedly responded to the hilariously high level of workers’ compensation benefits being paid to state government workers. We reviewed two scathing reports, one by IL Auditor General William Holland and the other by Attorney General Lisa Madigan. Both pointed out how poorly our state government handled their workers’ comp claims. That hasn’t ended, to our understanding.

This is taken from the 2011 Amendments to the IL WC Act:

Sec. 405-411(e) There is hereby created within the Department of Central Management Services an advisory body to be known as the State Workers' Compensation Program Advisory Board to review, assess, and provide recommendations to improve the State workers' compensation program and to ensure that the State manages the program in the interests of injured workers and taxpayers. The Governor shall appoint one person to the Board, who shall serve as the Chairperson. The Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the President of the Senate, and the Minority Leader of the Senate shall each appoint one person to the Board.

Why put that in the legislation if you had no intention of doing it? From our research, it appears the WCPAB only met once in early 2012: http://www2.illinois.gov/cms/Employees/benefits/rm/Documents/State%20WC%20Advisory%20Board%20Agenda%20011212.pdf. It appears they never again met, in violation of the legislation above. We cannot find a listing of the required members on the web. So much for managing the program in the interests of taxpayers.

Why do we think the concept was dropped? Well, if you look at this report in 2012, you may note they outlined the State of Illinois had 18,000 pending state WC claims or about one pending claim for every three state workers. We consider that a staggering number of state WC claims. http://www2.illinois.gov/cms/About/Reports/Documents/2012_Transfer_Workers_Comp.pdf. We also understand they continue to annually spend more than $150M of your tax dollars in generous workers’ comp benefits to Illinois government workers. Someone in the current IL State administration stopped caring about spending/wasting taxpayer money on government workers a long time ago. Illinois government provides our state workers effectively “free” lifetime pensions, actually free or 100% taxpayer funded state retiree healthcare coverage for life and millions in WC benefits every year.

There are no subsequent updated reports about the IL State WC program anywhere in their many web pages. Basically, this means all of your State WC program is being handled in secret. This sort of hush-hush mismanagement is precisely what we have become used to in this nutty state.

 If you aren’t sure, the secret-powers-that-be, including Governor Quinn are poised to raise our top income tax rate to 8%. If Gov. Quinn wins, we assure you this is going to happen in the November veto session in Springfield or in about one month from today. If you want higher taxes, tolls and government fees, vote for him. If you want to stop rising taxes and see better management in Illinois government, we recommend you vote for Bruce Rauner.

As an aside, while looking up other things, if you go to this web page http://www2.illinois.gov/cms/About/Reports/Pages/default.aspx, you will note the IL Department of Central Management Services has about $79M on deposit and the return they are getting on that gigantic sum of money is $733 a month!! That return is .011%!!! Again, do you want to keep the managers in place that can only find a .011% return on state funds?

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