3-14-2016; John Campbell Confirms No "Double-Dipping" for WC and GL Claims; Dominicks Winces With Runaway Jury Award in Retaliation Claim; Fighting Hotel Manager Loses Court Fight and much more

Synopsis: No “Double-Dipping” Allowed for Chicago Paramedic Injured in Training. Once Recovery is Enjoyed Under One Remedy; Plaintiff Cannot Recover in a Separate Civil Action. Analysis by John P. Campbell, Jr., J.D.

Editor’s Comment: In Locasto v. The City of Chicago, 2016 IL App (1st) 151369 (issued March 8, 2016) our IL Appellate Court explained how an employee may have a valid civil claim against their employer while also filing a workers’ compensation claim. However, once recovery is enjoyed under either remedy, Petitioner/Plaintiff cannot continue on seeking recovery in the separate legal action.

Petitioner/Plaintiff Locasto was a paramedic trainee for the City of Chicago when he suffered severe dehydration and kidney failure due to rigorous training exercises.

Plaintiff Locasto first filed a civil tort action alleging intentional injuries by his training officers, as agents for the City of Chicago. Veteran observers will note this claim of an intentional injury was carefully chosen by Plaintiff here. Remember, an employee’s civil claim for negligence against an employer would be clearly barred under the exclusive remedy provision of the Workers’ Compensation Act. However, intentional injuries inflicted by an employer create an exception to the exclusive remedy provision of the IL WC Act, therefore allowing a Plaintiff to sue his/her employer for civil damages. This is of course why Locasto chose to allege an intentional injury by the City; he was seeking a way around the exclusive remedy provision of Section 5 of the Workers’ Compensation Act.

While the civil case was pending, Locasto also filed for workers’ compensation benefits and recovered substantial medical benefits, TTD and an award of permanent partial disability under the Workers’ Compensation Act.  Once Locasto recovered benefits under the Workers’ Compensation Act, the City of Chicago moved for summary judgment on the civil action, citing the exclusive remedy provision and also pointing to the “election of remedies doctrine” to argue for dismissal of the civil action, since Locasto had now enjoyed compensation/recovery under the Workers’ Compensation Act. Locasto contended the doctrines of election of remedies and estoppel do not bar his lawsuit, as he was alleging intentional tortious conduct on the part of the City.

However, the Court reasoned that, once the employee actually receives compensation under the Act, this acceptance precludes recovering in the tort case (citing Rhodes, 92 Ill. 2d at 471). “Once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act's provisions. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980).” Therefore, the Court determined that, having applied for and accepted workers' compensation benefits, Locasto was barred from pursuing an intentional tort action against Defendants under the exclusive remedy provision. Therefore, summary judgment was proper.

While dual avenues of recovery do not typically arise in workers’ compensation cases, the Locasto case is an example of how dual actions may be filed to protect a plaintiff’s right to recover, especially where the correct avenue for remedy is uncertain. In this case, there was an early question as to whether Locasto was even entitled to workers’ compensation benefits as a firefighter/paramedic in training. Remember that Chicago firefighters are actually excluded from coverage under the Act. While the Court ultimately determined Locasto, as a  trainee only, was not a “duly appointed member of the fire department” and therefore, not precluded from Workers’ Compensation Act coverage, Locasto could not have known how the Court would rule on the question initially. Therefore, he should have the right to at least file both the civil action and the workers’ compensation claim. However, Locasto and other similar plaintiffs must be mindful that once recovery is enjoyed under the Workers’ Compensation Act, such recovery will compel the dismissal of the related civil claim. Perhaps future petitioner/plaintiffs in these matters will seek to stay their workers’ compensation claim recovery until the related civil matter is concluded, so as to not lose the right to potential civil recovery to the exclusive remedy doctrine once workers’ compensation benefits are paid.

This article was researched and written by John P. Campbell, Jr, J.D. Partner at Keefe, Campbell, Biery & Associates, LLC. To reach John about these or any other legal issues, email jcampbell@keefe-law.com.

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Synopsis: Dominicks/Safeway Has Runaway Jury Award Plaintiff Staggering $2.65 Million Verdict on Employment Retaliation Claim Where No Lost Wages Were Awarded!!!

Editor’s comment: In the second of three recent legal developments involving the intricate rights for Claimants with both WC and civil claims, we are sad to report this somewhat shocking decision against a major U.S. employer.

We also feel Dominicks Finer Foods had a triad of poor risk management, inept human resources and overpriced defense counsel for years. It was our opinion their litigated claims would drag on forever. In this situation, we feel they made a staggeringly poor HR, legal or claims decision that clearly came back to bite them.

Last week, we learned a runaway jury provided a single Plaintiff a $2.65 million verdict in a retaliation claim against Dominicks/Safeway Inc. Plaintiff-Petitioner worked for Dominicks Finer Foods, a Safeway subsidiary. IWCC records indicate Claimant filed seven different workers comp claims against the company over the years. Dominick's eventually settled all the WC claims but obviously, they didn’t get a coincidental release/resignation. The defense team at KCB&A always assume we want our clients to get a release/resignation if Claimant is leaving your employ at the same time as their workers’ comp claims close. If you need help or advice in putting a release/resignation into place, please send a reply.

Either way, during the pendency of the WC claims, Dominicks/Safeway requested Claimant submit to an IME or independent medical examination. The IME doctor opined Claimant did not have a work-related injury. Although the IME released Petitioner to MMI and full work immediately with no restrictions, Claimant's personal physician recommended Claimant remain off all work. Claimant followed his treating doctor's advice.

No one at Dominicks Human Resources Department, WC Claims or outside counsel told/notified Claimant if he was going to remain off work in that fashion, he had to call in absent. Duh. The HR department treated the absences as “unexcused” because Claimant didn’t know and didn’t call in. After he had three consecutive “unexcused” absences, Dominick's fired him. During a later WC hearing, an Arbitrator with the Illinois Workers Compensation Commission found Claimant could follow his doctor's advice, and ignore the advice of the IME doctor. The IL WC Commission panel eventually upheld this decision. One has to assume, although we can’t be sure, TTD was awarded by the Arbitrator and Commission panel when Claimant was off work for these “unexcused absences.”

In the meantime, Claimant filed this parallel lawsuit against Dominick’s/Safeway in the Cook County Circuit Court, alleging the company fired him in retaliation for seeking work comp benefits. Dominicks/Safeway maintained Claimant was terminated for “legitimate, non-discriminatory reasons,” as he violated its goofy attendance policy in not calling in or showing up for work when the IME reliance by Dominicks mystically required him know about it and do so. Again, the legal controversy arose because he didn’t know and wasn’t told to call in.

Claimant sued for damages due to this HR determination to terminate him based on “no call, no show” and the lack of notice of the need to call in. A Cook County trial judge found Dominick’s kooky change in absence coding was inappropriate. The judge further ruled Dominicks discriminated against Claimant as a matter of law by terminating him while Claimant’s comp claim was still pending.

The Illinois Appellate Court reversed the trial court’s grant of summary judgment and sent the matter back for trial on the question of whether Claimant’s termination was causally related to his exercise of his rights under the Workers' Compensation Act. The Appellate Court specifically found the employer had improperly relied upon the opinions of the respective IME physician in its decision to change the employment and call-in status of the employee. However, the Court further found the employees nevertheless had the burden of establishing all elements of their causes of action in order to seek recovery under the tort of retaliatory discharge. Although the Appellate Court ultimately decided it was wrong for the employer to terminate the employees under its attendance policy based solely upon the IME opinions and the lack of notice of the need to call in, it refused to rule such action would per se cause the employer to be liable for retaliatory discharge and remanded the cases for consideration by the jury.

Why Do We Say It Was A “Runaway” Jury? Well--Where are the Lost Wages???

The employer in this instance failed to communicate directly to each employee their classification status under the attendance policy was changed. Thus, neither employee was on notice that they were required to call in their absences on a daily basis, as the policy required. It is clear an employer who terminates an employee under similar circumstances places itself at significant risk. However, the first and most important part of damages in any retaliation claim is lost wages. Many Plaintiff firms won’t even consider a retaliation claim without substantial lost wages.

The problem with lost wages is the IL WC Commission can and should have awarded TTD during all periods of lost time—that makes it hard for a jury to award anything. And from what we can tell, the WC claims were compromised and settled some time ago, certainly long before this jury verdict.

What just happened is a Cook County jury found in favor of Claimant and awarded Claimant $31,315.50 in medical bills (?), $75,000 for past emotional distress, $50,000 for future emotional and/or psychological damages, and a whopping $2.5 million in punitive damages. In the absence of any lost wages, we consider that award to be shocking and unfounded. Please note this ruling is diametrically the academic opposite of the Locasto ruling reviewed by John Campbell above—in that claim, resolution of the WC claim ended any claim for alleged intentional injuries by the employer. It also makes little sense to us how Claimant could have unpaid medical bills that he could seek as damages in the common law action but were left unpaid in the WC settlements. We also don’t understand how the WC resolution of lost time would still allow Claimant to have such damages for “retaliatory discharge” in the Circuit Court.

While we agree the actions of Dominicks/Safeway weren’t brilliant, the idea of awarding someone who didn’t have any lost time as monetary damages all those punitive damages is hard to comprehend. Understanding we are in one of the most liberal jurisdictions in the U.S. and maybe the world, we don’t feel there is any chance of remittitur or an Appellate Court knocking that award out.

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

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Synopsis: If Your Employees Provoke or Participate In a Fight and Get Injured, It Isn’t Retaliation to Fire Them.

Editor’s comment: Last week, the federal Sixth Circuit Court of Appeals ruled an employer did not retaliate against an employee for having filed a workers' compensation claim due to injuries on the job. The Federal Appellate Court ruled the employer fired her for violating numerous work rules and provoking the physical altercation that led to various injuries.

Video cameras captured the verbal and physical exchange between a manager at the InTown Suites in Louisville, Kentucky, and a patron who came into the hotel lobby to complain about a vending machine malfunction. The man claimed he pressed the button for soda, but the machine gave him a bottle of water.

InTown hired the manager in 2010, and she claims she received glowing performance reviews during two years with the hotel. While at work on Nov. 19, 2012, a man entered the hotel lobby seeking a refund for a beverage he purchased from a vending machine outside the property. The man said he was not a hotel guest, but a resident of the apartment complex nearby. After the manager told him the machine was for guests only, the man made an inaudible reply that was apparently offensive. The manager then demanded he leave.

Shortly thereafter, the manager and patron began arguing, and the manager said “bye” sarcastically and made an exaggerated waving gesture as the man turned to leave. The manager repeated this gesture twice as the man was walking away before he turned and began yelling at her once more. The manager confronted him and responded by basically daring him to come across the front desk and engage her. After the man knocked a computer screen on the front desk to the ground, the manager called for her trainee to summon the police. She also came out from behind the front desk and went to the lobby door, blocking the patron from exiting. The man tried to get past her and out the door, but the manager positioned her body to prevent the door from opening. When the patron pushed the manager aside, she charged back toward him, swinging and clawing at his face. The man threw the manager to the floor, kicked her twice, then fled.

The manager was injured and then sought medical treatment for her face and hands, and she also informed InTown Suites upper management of the incident.

InTown’s general counsel and its chief executive officer viewed the security footage two days later, the day before the Thanksgiving holiday. They discussed the video with two other executives, and everyone agreed to place the manager on administrative leave until after the holiday. On the following Monday, the injured manager called InTown’s employee benefits department to inquire about filing a workers' compensation claim. That same day, the four executives who had placed the manager on leave reconvened and unanimously decided to terminate her.

Along with bringing a work comp claim, the manager filed a retaliatory discharge claim against InTown in a Kentucky state court, seeking more than $1 million in damages. InTown Suites quickly removed the case to federal court based on the parties’ diverse citizenship, and it then filed a motion for summary judgment.

U.S. District Court Judge David J. Hale granted the motion and noted "[the former manager] has no direct proof of a causal connection between her requested workers’ compensation and the decision to terminate her." And the federal judge said he believed no reasonable jury would deny that InTown had sufficient reason for firing the former manager after watching the security camera video.

Plaintiff appealed. Her attorneys told the 6th Circuit Appellate Court "this case has been a literal and figurative kick to the face" for Plaintiff. They emphasized the video footage established the patron was a "trespasser," and he was the one to escalate the situation, first by insulting the manager, then by turning the fight physical. Although the manager obviously engaged the man, her attorneys insisted she "was not the aggressor and acted only to defend herself and InTown’s facility from a violent and verbally abusive trespasser." They further took issue with the trial judge's acceptance of the testimony from InTown's executives insisting the decision to terminate Plaintiff had nothing to do with her pursuit of work comp benefits. Plaintiff’s attorneys contended the federal trial judge treated the content of this testimony as "undisputed fact," and improperly placed the burden on Plaintiff to rebut it. They also said it was "difficult to conceive of how [the former manager] could directly rebut it" because she was not present when the InTown executives made the decision to terminate her and those meetings were not recorded.

The 6th Circuit Court of Appeals was not persuaded. Although Kentucky's statutory scheme protects a worker from adverse employment actions taken in retaliation for pursuing a legitimate workers' compensation claim, the federal appeals court said Plaintiff’s claim failed as a matter of law. Even if it were to assume Plaintiff had a valid claim, the federal appeals court said, "she cannot show that InTown’s explanations for discharging her—supported by the video—amounted to pretext." The Court ruled the fact that InTown's executives knew Plaintiff had a workers’ compensation claim at the time they decided to fire her did not mean they discharged her because of that claim. And the brief delay in the company making its decision to fire her also did not create an inference of retaliation.

"Companies need not rashly discharge an employee at the first sign of trouble to prove the sincerity of their motives, and InTown’s minimal delay does nothing to undermine its explanation for firing [the former manager]," the federal appeals court said.

To read the court's decision, click here. If you have thoughts or comments, feel free to post them on our award-winning blog.

3-7-2016; Matt Ignoffo Outlines Important WI WC Changes; IL Appellate Court Refines Rights Under Section 19G; OSHA Attacks Rapid Accident Reporting Req'ment and much more

Synopsis: Crucial Changes to Wisconsin Work Comp!!!! Agreed Bill 724 Signed into Law on Leap Day February 29, 2016 by Wisconsin Gov. Scott Walker. Analysis by Matt Ignoffo, JD, MSCC.

Editor’s Comment: If you are a Cheeseland workers’ comp adjuster or risk manager, this article is required reading.

The bill was written by the Wisconsin Worker’s Compensation Advisory Council and makes several noteworthy changes, including, but not limited to the following:

• Modestly increases the maximum weekly permanent partial disability rate from $322.00 to $342.00, effective March 2, 2016 and to $362.00 for injuries on or after Jan. 1, 2017;
• Decreases the statute of limitations: It starts from the date of injury or date of last payment, for traumatic injuries and is reduced from 12 years to 6 years. The statute of limitations for occupational exposure claims remains 12 years;
• Allows for a system of apportionment regarding permanent disability with the intention that businesses pay what proportion of an injury they caused and not on any pre-existing injury or disability;
• Employers can now suspend TTD when an employee is brought back to light duty and subsequently is terminated for “misconduct” or “substantial fault,” as defined under the unemployment insurance law;
• Provides a defense for indemnity where an employee was found in violation of a drug or alcohol policy and there was a direct causation between the violation and the injury. The worker may still pursue medical treatment expenses;
• The Department of Justice will prosecute workers’ compensation fraud. This could be fraud by an employee, employer, insurance carrier, or health care provider;
• Allows workers during retraining to earn part-time wages to supplement their income.

The bill passed the Wisconsin Assembly with a vote of 97-0 and was concurred by the Senate with a vote of 32-0.

Time soon enough will tell if the Illinois workers’ comp system will be implementing any changes of its own. We do feel our IL WC leaders may be able to learn something from the important WC Amendments outlined above.

This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C. licensed in IL and WI who can be reached at mignoffo@keefe-law.com.

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Synopsis: Illinois Appellate Court Finds Injured Worker  May Not Bring 19G Petition While Employer Maintains Appeal of Award.

Editor’s comment: In Reed v. IWCC, Nos. 1-13-0681 & 1-13-2138, issued 2/18/2016, Claimant Reed suffered injuries in a motor vehicle accident twelve years ago while working as a truck driver for Respondent. In year 2012, Arbitrator Dollison issued an award for a significant six-figure claim for medical expenses and seven years of temporary total disability benefits. Reed's employers and insurance carrier appealed this decision to the Workers' Compensation Commission and the Commission panel in a decision penned by Commissioner DeVriendt upheld the Arbitrator's decision.

For reasons of which we are unaware, defense counsel or someone then apparently told Claimant Reed or his attorney they planned to seek judicial review of the Commission's calculation of his wages, but not the award of medical expenses. We aren’t sure how that conversation or reference might have made it into the record on appeal because there is no opportunity to add to the record at that point. We also note that statement is later contradicted in the Appellate Court’s opinion where Respondent indicated they wanted the Commission to reconsider the medical expense award on remand.

Either way, after the employers filed their petition for judicial review, Reed’s counsel filed a 19G complaint in the Circuit Court seeking a partial judgment on only the medical expense portion of the workers’ compensation award. Counsel for the employer moved to dismiss Reed's complaint, arguing Claimant Reed could not enforce the Commission's order when part of the Commission's decision was still properly protected by an appeal bond and was pending on appeal.

Circuit Court Judge Lopez-Cepero agreed with the employer and dismissed the 19G complaint.

Counsel for the employers then filed a Supreme Court Rule 137 request for sanctions against counsel for the injured worker. In response, the trial judge denied the motion. Counsel for Claimant Reed appealed from the dismissal order, and attorneys for the employer appealed the denial of their request for Rule 137 sanctions.

The Illinois Appellate Court unanimous majority ruled Section 19G of the IL Workers' Compensation Act expressly provides a party cannot obtain a judgment enforcing a decision of the IL WC Commission if any proceedings for review of the decision are pending. The opinion noted although the Illinois Supreme Court has said an application under Section 19G for judgment will not barred by review proceedings pending on “unrelated matters,” the Appellate Court ruling indicated this case involved a request for "enforcement on the same matter that was the subject of review proceedings." The ruling further indicated the panel was "not unsympathetic to (Reed's) natural desire for closure, even if only for a portion of this matter," but confirmed his employers had a right to seek judicial review of the Commission's decision. Thus, in accordance with Section 19G, the court said, Reed could not bring his Circuit Court enforcement action at that time.

The court also agreed with the trial judge this attempt to bring a Section 19G enforcement action did not warrant the imposition of Rule 137 sanctions.

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Synopsis: The Obama Administration Hates Rapid Accident Reporting Rules. KCB&A Still Recommends Them With a Caveat on Cautious Enforcement.

Editor’s comment: In our view, state-of-the-art in work accident reporting is to ask all workers to report any accident or injury, no matter how minor, as soon as possible. The problem isn’t that goal—the concern is what do employers do to enforce the rule?

We are sad to report our current administration doesn’t appear to like the whole concept and specifically hates enforcement. The U.S. Department of Labor sued United States Steel Corp. to reverse disciplinary actions taken against two employees for reporting workplace injuries in violation of the company's immediate-reporting policy and to force the company to amend the policy. The two employees were suspended without pay for failing to immediately report workplace injuries, per the company's policy, according to the lawsuit, which was filed in U.S. District Court in Wilmington, Delaware, on Feb. 17, 2016. 

In February 2014, Jeff Walters, a full-time utility technician at the Pittsburgh steel manufacturer's Clairton, Pennsylvania, plant found a small splinter lodged in his thumb and extracted it himself, according to the lawsuit. The technician completed his shift without further incident, but the thumb and hand were noticeably swollen two days later, necessitating medical treatment for an infection. When Mr. Walters reported the incident to his supervisor, the company imposed a five-day suspension without pay — later reduced to two days — for violating the company's injury reporting policy, according to the lawsuit.

Later that month, John Armstrong, a full-time laborer at the company's Irvin Plant in West Mifflin, Pennsylvania, bumped his head on a low beam, feeling no pain or discomfort at the time as he was wearing a hardhat, according to the lawsuit. However, he experienced stiffness in his right shoulder and sought medical treatment several days later and was eventually suspended for five days without pay.

Both workers filed complaints with the OSHA or the U.S. Occupational Safety and Health Administration alleging U.S. Steel suspended them in retaliation for reporting workplace injuries, with the agency finding the company violated the anti-discrimination provision of the Occupational Safety and Health Act in both cases. But U.S. Steel failed to rescind its discipline of either worker in addition to refusing to alter or amend its immediate-reporting policy to allow for a reasonable period of time for employees to report worksite injuries, according to OSHA. 

The lawsuit seeks to stop U.S. Steel from violating the Act, direct the company to rescind and nullify its immediate-reporting policy and permanently bar U.S. Steel from enforcing a reporting policy that requires employees to report their workplace injuries or illnesses earlier than seven calendar days after the injured or ill employee becomes aware of his or her injury or illness. The lawsuit also seeks to force the company to rescind its discipline and sanction of the two employees, direct it to compensate the employees for any lost wages and benefits, including interest and compensatory damages, and post notices at all worksites for 60 days stating it will not discriminate or retaliate against employees involved in activities protected by the Act.

In our view, we feel urgent work accident reporting and investigation is critically important. The faster you learn of a claim, the better chance you have to scrutinize and authenticate it. So we feel you want to have such a policy but enforce it as wisely as you possibly can. In our view, OSHA picked two test cases with what they feel are strong facts to allow a challenge to the entire reporting rule. If you read the facts above, we assume you see the problem. If you have minor “bumps and bruises” injuries that are late-reported, consider simply writing the worker up but don’t suspend or terminate. If you have an unquestioned traumatic event with immediate consequences, enforcement can and should be stronger. We are happy to consult on your program, simply send a reply.

Either way, please assume this administration is going to keep fighting and fighting and won’t provide a pro-business approach to accident reporting and investigation. We appreciate your thoughts and comments. Please post them on our award-winning blog.

2-29-16; IL Supreme Ct Abandons "Public Duty Rule" to Allow New Suits Against Local Gov'ts; John Karis on Shocking Workplace Ruling Against a GC and Others; Athletico Starts New WC Customer Service...

Synopsis: IL Supreme Court Follows ITLA Lead and Party Affiliation to Abolish the "Public Duty Rule" and Allow Unprecedented New Lawsuits Against Your Town and Mine—Higher Taxes Are Sure to Follow.

Editor’s comment: This isn’t truly a WC issue so if you aren’t concerned about higher local taxes in your town, skip this one. For insurance brokers among our readers, this is a new and unparalled risk your government clients will now have to deal with, for the first time—call your underwriters!

A divided Illinois Supreme Court recently abolished the common-law "public duty rule." This standard, widely known as the "public duty rule," was conceived by the U.S. Supreme Court more than 150 years ago and has been firmly in place in Illinois for at least 50 years. The rule had long provided local governments and their first-responder and other government employees owe no duty of care to rapidly provide emergency or other government services to individual members of the public—they owe a general duty to all. In short, this rule meant the many government workers couldn't be sued for negligence, like failing to arrive rapidly.

The split Supreme Court panel in Coleman v. East Joliet Fire Protection District, 2016 IL 117952, found the rule is somehow no longer viable based on "the interplay between the public duty rule and governmental tort immunity.” Justice Kilbride wrote the lead opinion, with Justice Burke concurring. Justice Freeman wrote a specially concurring opinion, which was joined by Justice Theis. Justice Thomas dissented, and was joined by Chief Justice Garman and Justice Karmeier. You may easily note the majority was entirely from the IL Democratic Party and the minority was from the Republican side.

In Coleman, Plaintiff filed claims for wrongful death and survival against Defendant East Joliet Fire Department on behalf of the estate of Decedent Coleman, who died of cardiac arrest in the process of seeking EMS or emergency medical service. After extensive pretrial motion practice, the only remaining counts in the complaint were ones alleging willful and wanton conduct on behalf of Defendants. Those counts were disposed of by the trial judge on summary judgment under the “public duty rule.” The Appellate Court affirmed the trial court's ruling.

From the view of IL Business and Government, this is where this case should have ended. We note the “public duty rule” has been affirmed by Illinois courts, including prior panels of our Illinois Supreme Court, for well over 50 years. In short, no one has ever successfully claimed the “public duty rule” was discordant with local government tort immunity.

Surprisingly, the Coleman majority took a radical and different view. After analyzing the history of state governmental immunity in Illinois, our highest court turned to the history of the “public duty rule,” which has existed in some form across the United States since 1855. The majority found it was time to abandon it for three reasons:

·         Jurisprudence was muddled and inconsistent in the recognition of the public duty rule and its special duty exception;

·         Application of the public duty rule was incompatible with the legislature's grant of limited immunity in cases of willful and wanton conduct; and

·         Determination of public policy is primarily a legislative function and the legislature's enactment of statutory immunities rendered the public duty rule obsolete.

Wow, most business and government leaders would strongly disagree with each and every thought above. Previously, a plaintiff's only means of demonstrating liability in the face of Illinois’ statutory governmental immunity was to show the government entity engaged in willful and wanton conduct. This is considered a challenge and also a protection to your town and mine. ITLA and the Plaintiff bar complained the public duty rule eliminated even that path for Plaintiffs, with very rare exceptions. Basically, the now-defunct rule exempted local governmental entities from any liability in connection with providing emergent services even if they were found to have committed willful and wanton conduct.

The Coleman majority also found our legislature carved out liability for cases of willful and wanton misconduct and the common law public duty rule was incompatible with the legislature's decision. Ultimately, the lead opinion left it to the legislature to determine whether it was necessary to retain the public duty rule, noting that it could always codify the existing rule or create a new rule.

Supreme Court Justice Thomas's scathing dissent took both the lead and specially concurring opinions to task for abandoning stare decisis with regard to the public duty rule. His opinion discounts the majority argument the application of the law was muddled. Justice Thomas also notes statutory tort immunity existed for decades prior to the Coleman ruling.

We feel this ruling ending the public duty rule will open up lots of new litigation for plaintiffs' attorneys to sue local governmental entities for good, middle and poor outcomes that might have been arguably prevented by better law enforcement or faster ambulances and fire trucks. The Coleman decision likely will increase the number and duration of lawsuits filed against public employees, despite the immunity provisions of the Illinois Local Governmental Tort Immunity Act. In addition, public employees now are at risk of liability for willful and wanton conduct, unless the Illinois Legislature acts to counter this ruling. To summarize, your town’s insurance costs are going up and your taxes are certain to follow.

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

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Synopsis: Huge Award Against General Contractor for Workplace Injury Following OSHA Investigative Actions and Citations. Analysis by John Karis, J.D.

Editor’s Comment: Be Forewarned--earlier this month, a jury in Harris County, Texas, awarded $54 million to the family of an employee killed while building Kyle Field stadium. Despite having no OHSA violations and not managing the employee, the general contractor was found the most responsible party for the worker’s death.

The facts of the case involve the employee using a loader's bucket to catch concrete debris being removed from the stadium. His work was part of the $450-million renovation. The loader had a 2,700-pound carrying capacity but was bearing a 3,340-pound concrete section as another worker was using a circular saw to cut the piece from a support column. The weight caused the overloaded equipment to topple forward over the side of the stadium. Tragically, the worker was thrown from the loader—falling about four stories to the ground.

OSHA issued two willful citations and placed the employer into their Severe Violator’s Program (SVEP). Being placed into OSHA’s SVEP has immediate and damaging national consequences, but this placement also created potentially unfavorable public evidence against an employer.

The lawsuit involved several site employers, including the Joint Venture/General Contractor, the deceased employee’s employer and another company working on site. Generally, workers’ compensation is the exclusive remedy against an employee’s employer or an injured employee, unless the employer engaged in near-intentional bad conduct resulting in the injury or fatality. This is a tough standard to prove. In Texas, an employer can also chose not to subscribe to workers’ compensation and consequently, be subject to a civil suit.

An OSHA area director, Casey Perkins openly claimed "these experienced contractors failed to provide employees with safe demolition procedures despite concerns from workers." He also said "employees had to work under the load and directly beside the skid-steer where they could be struck by the equipment or heavy, concrete debris. This disregard for worker safety is unacceptable and will not be tolerated." We are sure he has a right to his opinions, as a government worker.

OSHA then rendered a willful citation with a hefty penalty of $56,000 to one of the companies on the site for exceeding the operating capacity of the skid-steer loader where the equipment was loaded with concrete until what OSHA felt were obvious signs of tipping were seen. Another site subcontractor was also cited for a willful violation with a penalty of $63,000 for exposing workers to the hazard of being struck-by the skid-steer loader and concrete.

Due to evidentiary issues, Plaintiff did not get the OSHA citations before the jury but their underlying theories were present. Shockingly, the jury awarded $54 million dollars and their award did not include punitive damages. Plaintiff’s counsel claimed even without the OSHA citations, “Defendants were felt to be callous—refusing to accept any responsibility” which he claimed made the jury mad.

Notably, the general contractor was found 75% responsible despite no OSHA citations. The GC understandably argued a lack of responsibility under the usual multiemployer theory. They did not directly manage the employee and asserted his employer should have been responsible for his safety.

The obvious lesson is general contractors on a site take an enormous risk to leave safety concerns and management to the other contractors on site. The suit involved a construction site but there are lessons for any U.S. employer. An errant supervisor or an unusual/dangerous work situation can lead to bad events at any site.

If you’re a General Contractor, you need to:

·         Effectively prequalify your subcontractors and ensure they provide site-specific training and a safety plan;

·         Conduct a daily documented walk around and take documented corrective actions;

·         Bid the job with provisions for adequate safety professionals;

·         Owners need to insure general contractors adequately staff their jobs with safety support;

·         Train your site superintendents, project managers and engineers and foreman to recognize and respond to observed hazards; and

·         Regardless of who makes the error, all employers on site can pay whether by attorney’s fees and costs of defending a legal action and/or any judgments.

This article was researched and written by John Karis, J.D. You can reach John 24/7/365 for questions about OSHA, general liability defense and workers’ compensation defense at jkaris@keefe-law.com

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Synopsis: Athletico Announces Their New Workers’ Compensation Customer Service Department.

Editor’s comment: Athletico is one of the top physical therapy providers in the U.S. They just announced the formation of a new WC Customer Service Dep’t to optimize services to their patients, doctors, claims handlers, risk managers and attorneys on both sides. We want our readers to know of this new transition to insure when your claimants need physical therapy after a work accident, your needs are fully served.

By providing Work Comp services, educating employees on safe work habits, and creating environments where injuries are preventable, Athletico Physical Therapy really does go to work for their component participants.  From the time of injury through claim closure, their Work Comp services make the entire PT process a cost-effective and timely manner for everyone involved.

Athletico's Work Comp Services:

• Work Conditioning
• Physical Therapy
• Occupational/Hand Therapy
• Functional Capacity Evaluations
• Ergonomics
• Job Analysis
• Post-Offer Testing

About Their Services:

Athletico works to develop a training protocol for the long-term success of occupational and Work Comp and safety programs by training, equipping, and supporting allied health and safety professionals.

Athletico also offers a number of preventative and educational services. Work Comp specialists are trained to assess the work environment and worker behaviors in order to customize intervention techniques and programs.  Programs include the following:

• Job-Site Evaluations
• Job Analysis
• Workplace/Ergonomic Assessment
• Post-offer/Pre-employment Testing
• Injury Prevention Strategies
• Spine Control Classes

Benefits of Athletico’s Work Comp Services

Comprehensive: Athletico Physical Therapy offers timely, cost-effective Work Comp services designed to not only treat on-the-job injuries, but also return injured workers to the job with minimal risk of re-injury.

Convenient: Patients are guaranteed easy access to any of their convenient locations within 24-48 hours of their initial call. This allows them to minimize down time by quickly assessing injures and setting return-to-work goals.

Customized: Based on a valid job description and comprehensive interview of the injured worker, their rehabilitation specialist will develop return-to-work goals specific to each patient’s injury and on-the-job activities.

Coordinated Communication: Their comprehensive, convenient, and customized approach to Work Comp extends beyond the injured worker.  Athletico staff provides timely communication to all involved parties, including employers, primary physicians, case managers, and legal representatives.  In addition to the rehabilitation progress, we will provide 24-hour notice of patient cancellations or no-shows for scheduled appointments.

If you are a work comp professional and interested in learning more about Athletico’s WC Customer Service Dep’t, contact Michael Trombetta at michael.trombetta@athletico.com

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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond                                    .

Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.

Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:

When is a Physical Problem Repetitive Trauma versus Repetitive Working?

Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”

IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.

Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.

Traveling Employee Expansion When Handling Work Equipment While at Home.

Medicare Set-Aside Process as SMART Act is Implemented.

Comparing How Impairment Ratings are Considered at the IWCC.

We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.