6-20-2016: Important IL Third Party Ruling; EEOC Admits Their Mandated Anti-Harassment Training Doesn't Work!; U.S. Employers Get To Learn From Prior Hiring Mistakes and much more

Synopsis: Third Party Claim for Noggin-Bump Blocked by IL Appellate Court Ruling Due to Prior IWCC Settlement.

Editor’s comment: In Marquez v. Martorina Family and IPSA Corp. (decided June 17, 2016), Claimant was assisting in roof repairs on a commercial building. He got knocked in the noggin by a falling board at a job site in Chicago. It appears he and his attorneys settled the WC claim pretty much on the cheap—he only got $12,500. When his popular Plaintiff attorney sued two of the contractors on the construction job, the Circuit Court judge granted separate motions for summary judgment filed by both Defendants.  

Plaintiff’s four-count amended complaint alleged the building under construction was owned by Martorina Family LLC and IPSA Corp. was the general contractor for the construction work being performed at the building. Plaintiff was employed by Centro Development, Inc. or CENTRO pursuant to an oral agreement entered into between CENTRO and IPSA.

Plaintiff filed a WC claim with the Illinois Workers’ Compensation Commission against CENTRO and in 2012, the WC Commission approved a Settlement Contract signed by Plaintiff, his attorney, and the defense attorney representing CENTRO. The caption of the settlement contract was Marquez as the Employee/Petitioner v. CENTRO DEVELOPMENT AND IPSA CORPORATION/SALVATORE MARTORINA Employer/Respondent.” The settlement contract provided

[a]s a compromise adjustment, to avoid further litigation, Respondent offers and Petitioner [this Plaintiff] agrees to accept the total sum of $12,500.00, representing compensation for 5% loss of use of the person as a whole and disputed medical bills and disputed temporary disability, in full settlement of all claims of any nature arising out of the alleged accident of November 2, 2011, including but not limited to all claims for injuries known and unknown, all claims for additional future temporary total disability, all claims for past or future medical, surgical or hospital treatment. The settlement contract also states that all elements of the claim are disputed, “including the employer/employee relationship” and goes on to provide that “[t]he parties intend that this settlement releases both [CENTRO] and IPSA *** from any and all workers’ compensation liability resulting from the allegations made by the Claimant [this Plaintiff] in relationship to the accident date of November 2, 2011.

After settling with that exhaustive language, in the next year, Plaintiff filed the instant action against Salvatore Martorina, the Martorina Family, LLC, and IPSA Corp. seeking civil damages for injuries sustained working at the building. Plaintiff’s complaint was grounded in allegations of negligence on the part of each of Defendants. Defendant Salvatore Martorina filed a motion to be dismissed as a party Defendant which the Circuit Court granted. Plaintiff did not appeal from that order, and, as a consequence, Salvatore Martorina was not a party to the pending appeal.

A year later, Martorina Family, LLC, filed a motion for summary judgment and, argued the evidentiary material submitted in support of its motion established it did not retain sufficient control over Plaintiff or the work being performed at the building, to support the imposition of any duty of care upon it for Plaintiff’s safety, and, as a consequence, it was entitled to the entry of a judgment in its favor as a matter of law. Thereafter, IPSA Corp. also filed a motion for summary judgment. IPSA Corp. argued, at the time of his injury, Plaintiff was its temporary or borrowed employee, on loan from CENTRO, and, as a result, Plaintiff’s action against it is barred pursuant to section 5(a) of the IL WC Act and the terms of the IWCC-approved lump sum settlement contract.

Plaintiff argued genuine issues of material fact exist on the questions of his status as a borrowed employee of IPSA and whether Martorina Family, LLC, retained sufficient control over the work being performed at the building at the time of his injury to impose upon it a duty of care for his safety under the retained control exception to Section 414 of the Restatement (Second) of Torts § 414.

The Circuit Court judge entered a written memorandum opinion and order, granting both motions for summary judgment. As to Martorina Family, LLC’s motion for summary judgment, the Circuit Court found there are no genuine issues of fact on the questions of whether Martorina Family, LLC, retained control over the work being performed at the building at the time of Plaintiff’s injury, whether it exercised any such control, or whether it had actual or constructive notice of any unsafe condition which resulted in the Plaintiff’s injuries. Consequently, the Circuit Court found the Martorina Family, LLC, owed no duty to Plaintiff upon which liability for his injuries could be predicated. As to IPSA’s motion for summary judgment, the court found, although the evidentiary material on file disclosed a genuine issue of fact on the question of Plaintiff’s actual status as a borrowed employee of IPSA at the time of his injury, Plaintiff is, nevertheless, barred from recovering damages in an action at law against IPSA by reason of his having settled his workers’ compensation claim pursuant to a settlement contract which lists IPSA in the caption as his employer and which, by its terms, releases IPSA from any and all workers’ compensation liability.

Although Plaintiff’s notice of appeal states his counsel was appealing from the Circuit Court’s order granting “Defendants’ Motions for Summary Judgment,” in their brief Counsel for Plaintiff addressed only the propriety of the summary judgment entered in favor of IPSA and did not present any argument addressed to the summary judgment entered in favor of Martorina Family, LLC. As a consequence, any claim of error in the granting of Martorina Family, LLC’s motion for summary judgment was forfeited pursuant to Illinois Supreme Court Rule 341(h)(7) and the unanimous appellate majority, therefore, affirmed summary judgment in favor of Martorina Family, LLC.

In urging reversal of the summary judgment entered in favor of IPSA, Plaintiff argued, because a genuine issue of fact existed on the question of his status as a borrowed employee working for IPSA at the time of his injury, the Circuit Court erred in granting summary judgment in favor of IPSA based upon the exclusive remedy provision of the IL WC Act. Counsel for Plaintiff contended the fact he entered into the settlement contract disposing of his workers’ compensation claim did not act as a bar to his right to recover damages against IPSA in a negligence action if IPSA was not his employer at the time of his injury.

The Appellate Court noted contrary to Plaintiff’s assertion, the Circuit Court did not assume IPSA was his employer. As noted, the Circuit Court specifically found, based upon the evidentiary material before it, a genuine issue of fact exists on the question of the plaintiff’s status as a borrowed employee of IPSA at the time of his injury. Nevertheless, the Circuit Court still found Plaintiff’s negligence action against IPSA was barred under the exclusive remedy provision of the Act by reason of his having entered into the settlement contract resolving his workers’ compensation claim.

If a plaintiff has collected workers’ compensation benefits pursuant to a settlement agreement approved by the Commission, he is precluded from suing for damages in a civil action. If we were faced with a situation in which Plaintiff filed a workers’ compensation action against both CENTRO and IPSA seeking benefits for the injuries he sustained, and subsequently entered into a settlement contract with both, which provided for the payment of benefits pursuant to the Act and that settlement agreement was approved by the Commission, the Court would have no difficulty affirming the summary judgment entered in favor of IPSA predicated upon the exclusive remedy provision of the Act. In such a circumstance, Plaintiff, having sought and received WC benefits under the Act against CENTRO and IPSA on the ground he was injured in the course of his employment and having entered into a lump sum settlement agreement resolving the workers’ compensation claim, would be barred under the doctrines of judicial estoppel and res judicata from adopting a contrary position in a subsequent civil action against IPSA for the same injuries and relitigating his employment status in an attempt to avoid the exclusive remedy provision of the Act.

The Appellate majority found nothing in the record supporting the proposition Plaintiff asserted in the workers’ compensation claim he was injured while acting as an employee of IPSA, and, other than in the caption, the settlement contract did not contain any provision that identified IPSA as Plaintiff’s employer. Consequently, they did not believe the doctrine of judicial estoppel precluded Plaintiff from asserting he was not an employee of IPSA at the time of injury. Further, since the record failed to reflect IPSA was ever made a party to Plaintiff’s workers’ compensation claim, the commonality of parties necessary for the application of the doctrine of res judicata to the position taken by Plaintiff concerning his employment status was absent. Based upon the foregoing analysis, the IL Appellate Court concluded Plaintiff was not precluded from suing IPSA for damages in a civil action by reason of his having settled his workers’ compensation claim. Further, since, as the Circuit Court found, there was a genuine issue of fact on the question of whether Plaintiff was a borrowed employee in the service of IPSA at the time of his injury, they concluded the circuit court erred in granting summary judgment in favor of IPSA.

However, the IL Appellate Court clarified their holding to confirm they held only Plaintiff’s employment status was a disputed issue of fact that has yet to be resolved. If the trier of fact were to determine, at the time of his injury, Plaintiff was a borrowed employee in the service of IPSA, section 5(a) of the Act would stand as a complete bar to his right to recover damages in this action against IPSA.

We strongly agree with this ruling, drafted by Justice Thomas Hoffman, one of Illinois’ top justices. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: No Evidence EEOC-Mandated Corporate Training Prevents Harassment—So Why Stop Harassing U.S. Businesses With It?

Editor’s comment: What many businesses find out—the hard way—is the EEOC loves to bust your company for harassment that you didn’t even know was happening at one of your work sites. When/if you try to settle the dispute with what some feel is an irritating/overpowering government agency, they mandate you pay thousands of dollars for “training” that may go on for years at high cost to you.

Now, the biggest finding of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) Select Task Force on the Study of Harassment in the Workplace may be what it failed to find—any scientifically significant evidence the past 30 years of forced corporate training has had any effect on preventing workplace harassment. “That was a jaw-dropping moment for us,” said EEOC Commissioner Victoria A. Lipnic in a Sunday Session at the Society for Human Resource Management 2016 Annual Conference & Exposition.

Despite finding no data that harassment training works, EEOC managers continue to advocate HR professionals build on the foundation of their organization’s existing policies. “We’re not suggesting throwing out the old,” Lipnic said. However, “what we want people to understand is that if you are thinking training alone is a panacea to helping out any type of harassment, [it’s not]. It doesn’t work,” she said.   It’s effective to take a holistic approach that starts with getting the buy-in of senior leaders. “For [training] to matter, employees have to feel their leaders are being authentic,” another EEOC manager said. “They have to believe that leaders mean what they say” when they claim to want to stop harassment.

What the EEOC Feels Harassment Is

The EEOC interprets workplace harassment as generally defined to be any unwelcome conduct based on race, color, religion, sex, national origin, age (40 and over), disability or genetic information. It becomes unlawful when employees are forced to endure offensive behavior in order to keep their jobs or when the conduct is severe or pervasive enough to create a hostile work environment.

However, the Select Task Force is focused on thwarting all unwanted behavior based on protected characteristics. “We wanted to take a look beyond just what the law is,” Lipnic said. “Harassment doesn’t have to rise to the level of being pervasive and severe,” she said. “[Our goal] is to stop unwelcome conduct before it rises to the level of legal problem.”

Millions of Your Dollars May Be at Stake—Consider Staying a Step Ahead of Them By Hiring Brad Smith, J.D.

EEOC Managers Lipnic and Feldblum made several recommendations for how HR can help prevent workplace harassment: In 2015 alone, the EEOC recovered $165 million from challenging/contested harassment charges against employers. Citing this information is a powerful way to counter the perception that allowing bad behavior is the price leaders have to pay to retain certain high-level employees.

You may want to consider implementing customized in-house training to stay a step ahead of what the government may demand. To be effective, “you need training that is live, in-person and customized to your workplace,” Lipnic said. “You need someone who understands what your workplace is.”

The Select Task Force recommends two new forms of training intended to cultivate harassment-free workplaces. “What we learned from academics and investigators is that if one does what’s called “workplace civility training”—a very skills-based training on how to be respectful—that can help [employers] avoid harassment on the basis of protected characteristics,” Feldblum said.

Feldblum and Lipnic also suggest something called “bystander intervention training,” in which employees are taught to recognize and report problematic behavior among others when they see it. It is modeled after the “It’s On Us” campaign against sexual violence, in which individuals are asked to sign a pledge indicating they will intervene if they witness a rape or sexual assault in progress.

The Anti-Harassment Trainers at KCB&A Can Help!

Bradley Smith, J.D. and Brittany Pendry, J.D. of KCB&A are happy to assist in modeling your ongoing training to be a step ahead of any EEOC command/demand for training to eliminate harassment in your workplace. They can be reached at bsmith@keefe-law.com or bpendry@keefe-law.com for more details and assistance.

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Synopsis: Federal Court of Appeals Finds No Discrimination When an Employer Learns from their Past Hiring Mistakes.

Editor’s Comment: Earlier this month, the 7th Circuit Court of Appeals found the U.S District Court did not err in granting Defendants' motion for summary judgment in a Section 1983 action alleging that Defendants denied Plaintiff’s promotion to a drug inspector position on account of her female gender, where Defendants conducted a background check of Plaintiff, which revealed she had recently filed for bankruptcy and had a relationship with an individual who belonged to a biker gang.

In the case of McCurdy v. Fitts, Candice McCurdy, a patrol deputy with the Williamson County Sheriff’s Department, applied for a job as an inspector with the Southern Illinois Enforcement Group, which investigates drug crimes. She was selected, subject to a background check.

Agent Barbee Braddy, who conducted the check, recommended she not be hired. Braddy discovered McCurdy recently filed for bankruptcy and was in a long-term relationship with an individual, who belonged to a biker gang associated with criminal activity. Braddy thought these facts made McCurdy unsuitable for a more responsible job, particularly given what had happened when the Group hired Caleb Craft. He, too, had been in financial difficulty and had some criminal associates, and he was fired when the Group discovered he was stealing drugs and money from the unit. McCurdy wanted to fill the Craft vacancy but following the adage “once burned twice shy,” the Group decided to look elsewhere.

McCurdy filed suit under 42 U.S.C. §1983, contending the officers who made these decisions engaged in sex discrimination. She offered two theories: first, she would have been promoted immediately had she been a man; second, the Group gave her background and associates more scrutiny than it does for male applicants. She does not deny the Group had legitimate reasons for thinking someone else would be more suitable; instead, she contends the Group would not have discovered these matters had the applicant been male.

The Federal District Court, however, granted summary judgment for Defendants, ruling McCurdy was treated the same as a male applicant would have been.

The Federal Appellate Court found the District Court’s conclusion was well founded with respect to the hiring decision, because Agent Braddy testified in discovery she investigated McCurdy exactly the same way as she investigates other applicants, and she always checks financial details and romantic entanglements. It was noted Braddy investigated Craft and recommended he not be hired because she discovered he had financial problems and associated with people engaged in criminal activities. However the Group overrode her recommendation about Craft, suffered the consequences, and was determined not to make that mistake again.

McCurdy points to Craft as someone who was treated more favorably, but the Seventh Circuit Federal Appellate Court noted employers are entitled to learn from their errors. Given Agent Braddy’s uncontested testimony she investigated McCurdy exactly as she investigates men who apply to be inspectors, and McCurdy’s concession Braddy’s findings constitute sex-neutral reasons for not hiring her, the Federal Appellate Court found summary judgment was proper.

To summarize, Defendants in this matter could properly base their denial of promotion on the fact a prior male individual in the same position had also experienced financial difficulties, had associated with criminal associates and had been fired because he had stolen drugs and money from Defendants' unit. This case allows employers to be entitled to learn from their prior hiring errors when considering current applicants. Employers should always look for potential warning signs when hiring applicants. However, it is important the employer always stays consistent with their searches and treats applicants the same across the board.

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

6-13-2016; Happy Anniversary, KCB&A!!!--What Can We Do Better?; Shawn Biery Reports on New Non-Compete Lawsuit; Brittany Pendry on EEOC Ruling and more

Synopsis: Happy Anniversary, Keefe, Campbell, Biery & Associates—C’mon Readers, What Can We Do Better for Our Clients, Potential Clients and You?

Editor’s comment: This week marks our 13th Anniversary in the insurance defense business. We love working for you and all of our great clients and friends in the five states we cover. It has been a wonderful ride.

Please help us with your thoughts on how we can be a better defense firm by ranking these ten concepts from:

1.    Speed of claim closure—is this the number one question for all litigation risk managers? Is your main issue getting complex/challenging claims to rapidly close via settlement, dismissal or trial?

2.    Overall focus on value in claims handling? Are you worried about reasonable legal fees, predictable costs and saving money?

3.    Litigation avoidance counseling—have you got a brewing issue and you need free legal advice on how to avoid/resolve a tough claim before you truly need a defense lawyer?

4.    Knowledge of the law—do you want the top legal minds in the five states we defend claims of Illinois, Indiana, Wisconsin, Iowa and Michigan? Do you know we have adjunct professors of law on our staff?

5.    Knowledge/familiarity with the hearing officers, including judges/justices/arbitrators/hearing members? Is it a prime factor for our team to thoroughly know the politics and proclivities of the great men and women we appear before every day of every year?

6.    Do you know KCB&A may be the most ethical firm in the U.S? Is it important to have defense lawyers of the highest possible ethics working with and for you?

7.    Are actual winning results from the top defense firm in Illinois, Wisconsin, Michigan, Indiana or Iowa important to you? We post them on our website and can contrast/compare them to your toughest claims.

8.    Are reference materials, books and claims manuals of value to your adjusting or risk practice? What reference materials do you need to help you in handling day-to-day claims?

9.    How important is free, accurate online email assistance? Do you know we have 24/7/365 answers to questions for WC, GL and EPLI adjusters have about compensability, defense tactics and appropriate reserves on claims, usually within 24 hours.

10. Do you need great experts for all aspects of your claims? We have a strong list for use in workers’ compensation, general liability and employment law defense litigation. If you need a one-time expert for an unusual issue, try us out!

Have we missed anything? Please tell us what else you need to be a great risk manager or adjuster and we will bring it to the fore.

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

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Synopsis: Illinois AG Working to Free the Freaky Fast from the Chains of Jimmy Johns’ Servitude. Analysis by Shawn R. Biery, J.D., MSCC.

Editor’s comment: As you may recall if you are an avid and longtime reader, we have reported in the past with regard to non-solicit and non-compete agreements and they are in the news again. Attorney General Lisa Madigan has filed suit against the Jimmy John’s sandwich-shop franchise over their arguably highly restrictive non-compete agreements allegedly forced upon sandwich shop employees and delivery drivers in their nearly 300 sandwich shops in Illinois. Madigan argues it is unfair to Illinois workers and bad for Illinois businesses as it prohibits workers from seeking better paying jobs elsewhere and provides the employer no incentive to increase their wages or benefits.

Jimmy John’s has yet to respond to the allegations based upon our research. At the center of the battle are Madigan’s contention that all employees are required to sign a non-compete agreement as a condition of employment which restricts the signee for two years after employment from working in any other business that earns more than 10 percent of its revenue from selling “submarine, hero-type, deli-style, pita, or wrapped or rolled sandwiches.” The restriction applies to any sandwich business within three miles of any Jimmy John’s Sandwich Shop in the country, according to the lawsuit which seeks declaratory judgment that the agreements are unenforceable, void and rescinded.

Research sources indicate Jimmy John’s corporate entities reportedly ceased using non-competition agreements in April 2015, but the change in corporate policy may not have been appropriately implemented or communicated to sandwich shops, employees or franchisees. Not a single employee of the Jimmy Johns’ providing my lunch last week was aware of the lawsuit or of having signed any non-compete agreement with the company when they took their job.

As we have noted in the past, if your company provides adequate legal consideration or extended employment these types of agreements can be enforceable. However, they are limited in nature and generally are for unique employees. It is unclear if the AG even needs to take up this fight as Illinois courts have weighed in on the agreements repeatedly and I was unable to locate a citation for a sandwich artist or delivery driver who has been subject to a court action to enforce one of the purported agreements.

Previously in Fifield & Enterprise Financial Group, Inc. v. Premier Dealer Services, Inc. 2013 IL App (1st) 120327, the Appellate Court indicated Illinois companies cannot require newly hired workers to sign a non-compete agreement with no consideration and expect it to be enforceable if the employee leaves within two years for any reason (or no reason at all). The unanimous June 24, 2013 decision appears to have affirmed what was considered conventional wisdom about non-competes. We have routinely advised clients to provide some form of separate consideration for non-compete agreements and it is unclear if Jimmy Johns provides anything other than employment for their alleged agreement. In Fifield, had the employer provided some form of consideration, the courts may have enforced the agreement.

Fifield involved an appeal from a Circuit Court of Cook County dismissal of non-solicitation and non-competition clauses in Fifield’s employment agreement. Prior to October 2009, Fifield was employed by Great American Insurance Company (GAIC). As an employee of GAIC, Fifield was assigned to work exclusively for Premier Dealership Services (PDS), a subsidiary which marketed finance and insurance products to the automotive industry. PDS was sold to Premier in 2009 and Premier made an offer to continue employment if Fifield signed an employment agreement which included non-solicitation and non-competition provisions for two years past any termination of employment.  Fifield even negotiated the agreement to void if terminated without cause in the first year of employment. He then resigned In February 2010 and in March 2010, along with his new employer, filed for injunctive relief. After a counterclaim was also filed by Premier, the trial court addressed the non-solicit and non-compete portions by declaring them unenforceable due to lack of adequate consideration.

Regardless of any personal feelings with respect to non-solicit/non-compete agreements, Illinois maintains one of the more employee-friendly venues for these types of agreements and employers should take heart when attempting to achieve and enforce such agreements. This reviewing court has made it very clear (as they had in the past cases cited in the decision) two years of employment or some other consideration for the agreement to be enforced. We note this is particularly of importance in the insurance industry because so many companies and brokerages use non-solicit/non-compete requirements to hamstring their employees from performing even routine services after leaving.

The twist in this case is that prior cases generally dealt with an employee already having the job and having been employed at least two years so they were deemed to have received adequate compensation for entering into a non-compete agreement. This case clarifies the same standard should apply to a newly hired worker and makes it very clear two years of employment or some other adequate consideration is at the minimum necessary to successfully enforce these types of agreements. Following this ruling, one might assume unhappy workers will not stay more than two years to render non-solicit and non-compete agreements worthless. In the end, it would be nice to see the AG take on a problem that has an impact on the rest of the state, like say the lack of a budget, runaway pensions and the well documented propensity for former elected officials to “retire” to other taxpayer funded government facilities since this issue doesn’t appear to have the impact of those more important issues related to the state.

This article was researched and written by Shawn R. Biery J.D., MSCC and he is available at sbiery@keefe-law.com or 312-756-3701 for any questions about this article or regarding crafting and implementing these type of agreements in appropriate situations or any other Employment or WC issues which employers may be dealing with in Illinois.

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Synopsis: Warrantless Searches: Coming to a Privately Owned Commercial Property Near You. Analysis provided by Brittany Pendry, J.D.

Editor’s Comment: Recently, the U.S. District Court for the Eastern District of Kentucky relied on a 1978 decision of the U.S. Supreme Court in allowing the EEOC to enter a steel company’s property to investigate a hiring discrimination claim without a warrant. We consider this a very important development for risk managers to know about.

In EEOC v. Nucor Steel Gallatin, Inc., No. 15-53-GFVT, 2016 U.S. Dist. LEXIS 56406 (E.D. Ky. Apr. 28, 2016), a prospective employee, Edward Bennett, filed an employment discrimination charge with the EEOC, alleging Nucor Steel Gallatin, Inc., unlawfully rescinded a job offer after it became aware of Bennett’s disability record. Subsequently, the EEOC launched an investigation, issuing a Request for Information, and later stating an investigator for the Commission would conduct an on-site investigation, including conducting interviews with individuals who might have information relevant to the investigation.

Instead, Gallatin suggested the investigator conduct interviews of the individuals offsite. The Commission issued a subpoena requiring on-site access, and Gallatin filed a Petition to Revoke and/or Modify the Subpoena claiming it placed an unnecessary burden on Gallatin, and also such a search on company property required a judicially approved warrant. The Commission denied the petition, stating it would conduct an on-site examination and Gallatin responded it would not consent without the EEOC obtaining a court order or valid warrant.

The Commission petitioned the U.S. District Court, and the court reviewed two claims Gallatin raised: first, the Commission must obtain a warrant prior to entry; and, second, the Commission “does not have the statutory authority to conduct any on-site examination of commercial property, regardless of whether an owner consents to the entry.” Id. at 4-5. Gallatin cited Title VII of the Civil Rights Act of 1964, arguing the language does not “expressly afford a right of entry to the EEOC.” Id. at 5. The Federal Court disagreed, stating the EEOC has a long history of conducting a multitude of on-site investigations on private commercial property through the country. Id. at 6.

With regard to the most pertinent issue, that of the warrantless search, the Court relied heavily on Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). In that case, the U.S. Supreme Court ruled “administrative agencies cannot conduct nonconsensual inspections of private commercial property.” Id. at 313. However, in that case, the Supreme Court said that holding “did not necessarily ‘mean that, as a practical matter, warrantless-search provisions in other regulatory statues are also constitutionally infirm.’” EEOC v. Nucor Steel Gallatin, Inc. at 8-9. Instead, the Federal Court found “‘[t]he reasonableness of a warrantless search...will depend upon the specific enforcement needs and privacy guarantees of each statute.’” The Court found there were “safeguards roughly equivalent to those contained in traditional warrants” and held their Order provided all of the protections guaranteed under the Fourth Amendment.  Id. at 16.

After a charge has been filed with the EEOC, businesses can expect notification within 10 days. The EEOC will investigate whether there is reasonable cause to believe discrimination occurred. An EEOC investigator will evaluate submitted information and make a recommendation as to whether reasonable cause exists. Businesses can expect to be asked to submit a statement of position, respond to a Request for Information, permit an on-site visit, and provide contact information or have employees available for witness interviews. https://www.eeoc.gov/employers/process.cfm. Employers should be aware of the authority and power that the EEOC holds, and be prepared in the event a complaint is filed against the company. Particularly, employers should be aware the EEOC can launch an investigation on company property, without a warrant, to investigate claims made not only by employees, but potential employees as well.

This article was researched and written by Brittany Pendry, J.D. You can reach Brittany at any time for questions about EEOC regulations and defending EEOC charges, employment law, general liability defense, and workers’ compensation at bpendry@keefe-law.com.

6-6-2016; Springfield/Chicago--Where Democracy Goes to Fail; WCRI Research Analyzes the IL WC System; Matt Ignoffo on Important Wisconsin Insurance Coverage Ruling and more

Synopsis: Springfield/Chicago—Where Democracy Goes to Fail.

Editor’s comment: Political news in this State and Chicago keeps getting worse and worse. Last week, legislative efforts to come up with an annual IL state budget again failed with State Democrats creating a wacky, cut-off-debate budget that fell $7 billion short of its necessary funding. As everyone expected, Governor Rauner quickly and properly vetoed it and State Democrats didn’t have sufficient party unity to override the veto. It appears we may never have an actual state budget, causing fear/consternation and bankruptcies in the private sector for businesses and social agencies that rely on our state government for their well-being. Schools and colleges/universities are also petrified on how to stay open. Without any question, there isn’t enough money and some things are going to have to be wisely cut and State Democrats simply won’t address these important issues, as they strain to give away more and more money they simply don’t have.

On the workers’ comp side, the Governor’s suggested “Turnaround Agenda” reforms or what we prefer to call minor ideological tweaking (other than the slashing of some medical fees again), also were lost in the shuffle. Due to the infighting in Springfield, every indication is nothing is going to happen to reform IL WC this year or any time soon. As we have advised our readers, we expect our state’s WC costs to continue to drop as the Arbitrators and Commissioners appointed by this Governor quietly exert their best efforts to bring Illinois into the mainstream of U.S. WC costs. We should have a better idea at the end of year when the State of Oregon issues their every-other-year analysis of WC insurance premiums—you can watch this spot for those important stats. You may also want to carefully review the next article below.

IL WC veterans can only grin to hear the public relations silliness spun by Steve Brown, the press secretary for House Speaker Michael Madigan, our leading State Democrat. “Workers’ compensation has always been on the table,” said Mr. Brown. But Brown claimed last Wednesday that IL workers’ comp reforms passed in 2011 resulted in significant savings that those evil but unnamed WC insurers somehow did not pass along to employers, “which is no surprise to anyone,” per Mr. Brown. Democrat Lawmakers are considering mysterious and magical ways to “force” insurers to pass along those ethereal and hard-to-define savings.

The last we looked, almost all of our defense clients had self-insured retentions for their WC coverage which means if the benefits are lower, they pay out less.

Mr. Brown is also threatening to expand the IL WC Fraud Unit. “More employers are being investigated for fraud than individual workers,” Brown said without the slightest bit of evidence to support this claim. “We’re looking at all those things. The Governor and his friends, the business guys, say just take everything out of the pockets of the doctors and employees. He would basically deny workers any kind of benefits.”

When you stop giggling to read such tripe, please note Governor Rauner has recommended four fairly minor legislative changes that will keep most of IL WC the same as it has been for years. Those changes don’t take “everything out of the pockets” of anyone.

On the continuing Chicago Fake Government Pension Funding Catastrophe, Mayor Rahm Emanuel fought for and got an extension to further “unfund” the Chicago Police and Fire fake gov’t pensions until year 2020. As Mayor Emanuel already has to come up with about $700M by the end of this month that he doesn’t have to fund the fake Chicago Teacher’s Union pensions, he would have had to dramatically and immediately raise taxes to pay this additional police/fire pension debt. From a purely political perspective, he went begging to Springfield, not to try to make any sense of a fake pension program that can’t be made to make sense; he just wants more time, as his current mayoral tenure coincidentally ends in 2019. This is “I’ll Be Gone; You’ll Be Stuck” Illinois politics at its very worst.

As stunning as it may sound, the IL General Assembly voted to override Gov. Bruce Rauner’s veto of Mayor Rahm Emanuel’s plan to delay payments to Chicago’s police and fire pension funds — at a cost to Chicago taxpayers of an additional $18.6 billion over the next 40 years. Worst of all, delaying the pension payments sets Chicago taxpayers up for massive tax hikes. The law calls for Chicago to automatically begin dramatically raising property taxes in 2020 to pay for the postponed pension contributions. You may want to diary the year 2020 as a date to reconsider maintaining a business in Chicago, as real estate taxes are sure to skyrocket and/or the next mayor of Chicago may try to get a law passed to allow them to file for bankruptcy.

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Synopsis: Real and Important Research Analyzing the Illinois Work Comp System—Is the System Truly Getting Better?

Editor’s comment: While looking up other things we saw the great team at WCRI or the Work Comp Research Institute put out a series of reports provides ongoing annual monitoring of how IL WC indemnity benefits, medical payments, and benefit delivery expenses per claim change over time,  as well as how the Illinois workers’ compensation system compares with other study states on many key metrics. Their research analyzed claims with injury dates between 2009 and 2014 (evaluated as of March 31, 2015). In some cases, they used a longer time frame to supply a historical context for what they felt were key metrics and to provide a broader context for evaluating effects of changes related to the 2011 WC legislative reforms in Illinois.

In 2011, Illinois legislation HB 1698 introduced several changes to our workers’ compensation system that was designed to impact key claim cost components. These changes included a 30 percent reduction in the medical fee schedule rates, the introduction of WC preferred provider programs (WC PPPs) for selecting a network of treating physicians, and the addition of the option to use utilization review based upon recognized treatment guidelines and evidence-based medicine. In addition, the 2011 Amendments to our IL WC Act introduced the American Medical Association Guides, 6th edition, for the evaluation of impairment ratings and set specific limits on the duration of benefits for carpal tunnel injuries and wage differential benefits.

Major Statistical Findings For IL WC System

The major findings for the WRCI research are as follows:

·         The average total cost per WC claim with more than seven days of lost time decreased since 2011, which they felt was due mainly to the reduction in medical fee schedule rates. Compared with the other study states, total costs per claim in Illinois remained higher than typical for 2012/2015 claims.

·         Indemnity benefits per claim were higher than those in the other study states due to the following:

o    More frequent and larger permanent partial disability lump-sum settlements coupled with longer duration of temporary disability in Illinois compared with other study states with PPD benefit systems.

o    The average lump-sum payment per claim changed little, and the percentage of claims with lump-sum settlements decreased. These changes were observed after 2009 for both less and more mature claims.

o    Offsetting components resulted in typical litigation expenses per claim: Illinois had among the lowest defense attorney payments per claim (with payment greater than $500) of all the study states.

o    Defense attorney involvement was higher than typical. Both the use of medical-legal services and the average medical-legal expense per claim were higher than typical in Illinois. Litigation expenses grew faster in Illinois than in most study states.

·         Medical payments per claim were closer to the median study state for 2012/2015 claims than they were before the 30 percent reduction in the medical fee schedule rates in 2011. Prior to the medical fee schedule rate reduction, medical payments per claim were among the highest of the study states.

Total Costs Per IL WC Claim Were Clearly Reduced Since 2011

The average total cost per claim with more than seven days of lost time in Illinois was 19 percent higher than the cost in the median study state for 2012 injuries evaluated as of the first quarter of 2015. For 2008/2011 claims, total costs per claim in Illinois were 37 percent higher than the median study state. The change in Illinois’ interstate ranking mainly reflects the impact of the 30 percent reduction in the fee schedule rates for all medical services. Between 2010 and 2012, based on more mature claims, total costs per claim decreased 8.0 percent in Illinois. This was the largest decrease of the study states. In 2013 and 2014, based on less mature claims, total costs per claim in Illinois grew moderately, reflecting small to moderate increases in medical payments per claim, indemnity benefits per claim, and benefit delivery expenses per claim.

Indemnity Benefits in IL WC Remain Higher Due to Higher Value Settlements and Duration of TTD/TPD

Indemnity benefits per claim with more than seven days of lost time in Illinois were higher than those in the median study state in 2012 (evaluated as of 2015). This result reflected longer duration of temporary disability coupled with more frequent and more costly PPD/lump-sum settlements.

In Illinois, temporary total disability (TTD) benefits are paid at a rate equal to 66⅔ percent of the worker’s pre-injury wage, capping at 133.3% of the SAWW; in most study states the maximum benefit rate is set at 100 percent of the SAWW. The higher weekly benefit maximum in Illinois than in other study states likely contributed to higher-than-typical average weekly benefit rates. In addition, compared with the other study states, Illinois had among the largest gaps between the maximum weekly TTD benefit rate ($1,337) and PPD benefit rate ($735). This difference in benefit rates likely affects the duration of temporary disability benefits and proportion of claims with temporary disability and PPD benefits.

An important component of indemnity benefits is the duration of temporary disability benefits. In 2012 (evaluated as of 2015), Illinois had a longer duration of temporary disability benefits than most other study states. On average, injured workers stayed away from work for 19 weeks compared with 13 weeks in the median of states with PPD benefit systems. Longer-than-typical duration of temporary disability in Illinois might be related to lack of limits on duration of benefits, except as indicated in the PPD schedule. In contrast, other study states have features that lead to lower average duration, such as statutory caps on temporary disability benefits and allowing termination or modification of TTD benefits without a formal hearing.

One provision of the 2011 reforms, the introduction of the AMA Guides for the evaluation of impairment, may have a long-term impact on both the percentage of claims with PPD/lump-sum settlements and the average PPD/lump-sum payment per claim. Such an impact can be realized if the ratings for determination of the degree of impairment are applied consistently in the majority of cases. It is important to note that, under the reform legislation, the degree of disability is determined by five factors: the level of impairment (AMA rating); the injured worker’s occupation, age, and future earning capacity; and evidence of disability corroborated by medical records. The legislation specifies that the AMA Guides will be used to set the ratings, yet there is no provision for automatic admissibility of the ratings when determining the overall degree of disability. In 2011, the Illinois Workers’ Compensation Commission (IWCC) guidance to arbitrators provided that they do not need an impairment rating to approve settlement contracts, and they are not prevented from awarding PPD benefits at a hearing if there is no impairment rating on the record. System stakeholders noted some observations: starting in 2014, more cases have been reaching maximum medical improvement when an evaluation of impairment rating is done; and when submitted, the AMA rating is generally considered by arbitrators. Furthermore, not all cases need an impairment rating; for instance, when the negotiated amount is relatively small, the parties may decide that the cost of obtaining the rating is not reasonable compared with the amount in dispute. Prior to the 2011 amendments and introduction of the AMA Guides,7 there was no part of the statute that provided any instructions to the IWCC with respect to determining PPD benefits. As a result, PPD benefits were awarded based only on historical precedents, applying multiple factors.

In Illinois, a PPD benefit is viewed as a settlement after the injured worker completes medical treatment and is at maximum medical improvement. That is why 37 percent of Illinois claims with more than seven days of lost time received lump-sum payments, half as many as the median study state in 2012 (for claims with an average maturity of 36 months). The average lump-sum settlement per claim with more than seven days of lost time in Illinois was in the middle of the states with PPD benefit systems for 2012/2015 claims. For 2010/2015 claims, the average lump-sum payment per claim was among the highest of the PPD study states. Note than in Illinois, 49 percent of claims settled within 60 months of injury compared with 11 percent of claims that settled within 12 months after the injury. This means that any sizeable impact from the legislative changes related to PPD/lump-sum settlements may be seen only for more mature claims.

The trend in the average lump-sum payment per claim changed little in Illinois after 2009. However, the percentage of claims with settlements decreased between 4 to 7 points depending on claim maturity. System participants indicated that this result likely reflects the impact of the recession and especially slower recovery in Illinois, when higher unemployment rates might have created limited opportunities for injured workers to return to work with their preinjury employer or to find a job with a new employer. In addition, uncertainty related to the application of the new law for impairment rating evaluations may have also contributed to the observed results after 2012.

Medical Payments Per WC Claim Were Closer to the Median Study State for 2012/2015 Claims than prior to the IL WC Fee Schedule Reduction

For 2012 injuries (evaluated by WCRI as of 2015), the average medical payment per claim with more than seven days of lost time in Illinois was closer to the median study state than in previous years. Prior to the reduction in the fee schedule rates, Illinois had among the highest medical payments per claim of the study states. Medical payments per claim incorporate both utilization and price of services delivered by medical providers. Because utilization of medical services was relatively stable between 2010 and 2012 (at 12 months of claim maturity), most of the impact on medical payments per claim in Illinois could be attributed to lower prices resulting from the decrease in the fee schedule rates.11 As documented by WCRI, higher-than-typical medical payments per claim in Illinois reflected higher prices paid for professional services (except for evaluation and management services) and higher utilization, largely driven by physical medicine. After the reduction in the fee schedule rates, the average hospital payment per claim (both for inpatient and outpatient care) in Illinois was in the middle group of study states.

Between 2013 and 2014 (claims with an average maturity of 12 months), medical payments per claim in Illinois increased 2.0 percent. One component of medical payments, prices paid for professional services, decreased slightly (1.7 percent) in 2014. Medical cost containment expenses are an important metric for showing whether the 2011 reforms in Illinois resulted in changes in the ways payers control growth in medical payments. Medical cost containment expenses per claim reflect the combined impact of fees for bill review, case management, utilization review, and preferred provider networks. After 2011, the growth in medical cost containment expenses per claim in Illinois continued (except in 2014). Such growth is not unusual because the reduction in the fee schedule rates may require more frequent use of bill review. It is also reasonable to expect, in light of the new utilization review rules, that companies would spend more on utilization review to determine the reasonableness and necessity of medical treatment. Under the new rules, when utilization review is invoked, the provider is required to provide a clinical report to support the request for treatment. The utilization review has to be based upon recognized treatment guidelines and evidence-based medicine.

If you want to purchase this important research for your organization, please go to this site: http://www.wcrinet.org/

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Synopsis: Wisco Court of Appeals: WC/EL Insurer has no duty to defend employee accused of sexual assault. Analysis by Matthew Ignoffo, J.D., M.S.C.C.

Editor’s Comment: The facts in Rhyner v. Rydberg involve Plaintiff Rhyner alleging Defendant Rydberg committed battery and intentional infliction of emotional distress when he manhandled her at work. Court of Appeals of Wisconsin, No. 2015AP2010 (May 25, 2016). Rhyner and Rydberg both worked at Veterinary Medical Services Corp. (VMS). Rydberg sought coverage for Rhyner's claims with VMS's worker's compensation and employer's liability carrier, General Casualty Company of Wisconsin. General Casualty intervened in the action and sought a determination that General Casualty had no initial duty to defend, no ongoing duty to defend, and no duty to indemnify Rydberg. The Circuit Court agreed and dismissed General Casualty from the case. Rydberg appealed.

The Court of Appeals indicated to determine whether there is a duty to defend it first must consider whether the policy granted coverage.

Regarding the WC policy, the Court noted the general rule of worker's compensation law is if an employee has suffered a job related injury then the right to recover worker's compensation benefits "shall be the exclusive remedy against the employer, any other employee of the same employer and the worker's compensation insurance carrier." An exception to the exclusive remedy provision is an employee injured by another employee by "an assault intended to cause bodily harm" is not limited to a worker's compensation remedy. Plaintiff Rhyner brings her allegations of battery and intentional infliction of emotional distress against Defendant Rydberg under the assault exception and was not seeking WC benefits.

Defendant Rydberg’s argument for why he should be covered under the WC policy was because Plaintiff could recover WC benefits based on her allegations if the claim were brought as a WC claim, then General Casualty’s WC policy should provide his defense. The Court disagreed noting Rhyner was not seeking a WC claim. General Casualty's WC policy did not cover individual employees, it provided worker's compensation coverage to VMS for worker's compensation claims. Rydberg was not the insured under General Casualty's WC policy. General Casualty's policy language states that it has "the right and duty to defend at our expense any claim, proceeding or suit against [VMS] for benefits payable by this insurance," and the benefits payable by this insurance are only "benefits required of [VMS] by the workers compensation law." As it was clear that General Casualty's WC policy was "not intended to cover the claim asserted, the analysis ends [here]."

Regarding the EL policy, Rydberg argues in the alternative that General Casualty owed a duty to defend Rydberg under the EL policy, which provides coverage for "bodily injury by accident" arising "out of and in the course of the injured employee's employment." Again the Court noted Plaintiff was not suing VMS and Defendant had no coverage under the EL policy as Defendant was not an “insured” under the policy. Plaintiff’s claim was an intentional tort action against Defendant, personally. As Defendant was not a named insured and as there is "no duty to defend a claim, proceeding or suit that is not covered by this insurance," the EL policy did not provide a duty to defend.

We note Defendant Rydberg is the owner of VMS and it appears he attempted to secure coverage for the intentional tort claim brought against him personally, under the policies of his corporation. It is clear General Casualty had no interest in doing so under its policies and the Courts agreed. Although this is a Wisconsin case we feel under similar facts and policy language the result would be similar in alternative venues.

This article written by one of our top Wisconsin defense team members, Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.