6-10-2019; The Road Map for Illinois Staffing Companies to Avoid GL Suits Against Your Accounts; Circuit Court Judge Makes Shocking PPD Ruling and more

Synopsis: The Road Map for Illinois Staffing Companies to Avoid GL Suits Against Your Accounts.

Editor’s comment: If you are a staffing risk manager and want happy accounts that don’t get sued in Circuit Court by your staffers, here is how to do it. This claim is a must-read for all staffing companies and their accounts.

Here is the link: http://illinoiscourts.gov/Opinions/AppellateCourt/2019/2ndDistrict/2180537.pdf

The IL Rule on WC Liability for Injuries to Staffing Companies

The legal rules in IL WC for staffing employers and your accounts are simple to understand—you both owe WC benefits. The party managing the site where Claimant is injured/exposed is primarily liable, unless there is an agreement to the contrary. If you aren’t sure what this means, send a reply.

The Rules on Circuit Court Claims Arising From Work-Related Injuries to Staffing Workers in Illinois

Please note this nutty State just passed a new law I can only call SB1596 that indicates workers can now sue employers in Circuit Court for work-place exposures to asbestos. This new law would change the ruling below but only for asbestos exposures. Please note there is no time limitation on when such suits can be brought. Please check with your insurance gurus to insure you are covered for such business-busting risk—the exposure is going to be rare, as asbestos is disappearing, but the risk is possibly seven-figures.

Can a Staffer Sue the Staffing Company’s Account for Workplace Injuries?—This Ruling Provides a Resounding NO.

In this great and crystal-clear new ruling our IL Appellate Court ruling indicates Android, a manufacturer, contracted with a temp staffing company named Staff on Site for the provision of temporary employees. As pertinent, the contract between Android and Staff on Site provided:

1. Staff On Site and Client agree that Staff On Site will provide temporary employees ('Employees') for Client.

2. Client [Android] agrees that it will pay for said employees at the rate set forth in the attached proposal which, from time to time, may be amended by both parties in writing.

3. Client agrees Staff On Site's obligation to Client is limited to assigning employees ('Employees') with certain skills and abilities; maintain personnel and payroll records; calculate and pay wages; withhold and remit payroll taxes and other government-mandated charges (including worker[s'] compensation); hire, assign, reassign, counsel, discipline and discharge Employees and to be responsible for and handle work-related claims and complaints. Client further agrees to notify Staff On Site of any placement of employees working in conjunction with any Government Contract."

It was undisputed that Staff on Site maintained the requisite workers' compensation insurance. For staffing risk managers, it is your goal to insure that WC insurance covers all losses/workplace injuries and your accounts can’t be separately sued in Circuit Court.

Staff on Site hired Plaintiff Holten in approximately October or November 2011 and assigned Plaintiff to Android's industrial facility in Belvidere, as a forklift operator. Plaintiff alleged that on January 20, 2012, he sustained injuries when the forklift he was operating at Android fell from inside a tractor-trailer as the tractor-trailer moved away from a loading dock.

Plaintiff filed a workers' compensation claim against Android. However, Android directed Plaintiff to file the claim against Staff on Site. Accordingly, Plaintiff filed the claim against Staff on Site and received workers' compensation benefits. My research indicates he received a settlement of $32,500 for 3% BAW and 15% LOU hand. His counsels then fought and kicked to get additional GL monies from the manufacturer in Circuit Court.

The operative complaint alleged negligence against Android, the manufacturer where Claimant worked. Android filed affirmative defenses, confirming it was a borrowing employer under section 1(a)(4) of the IL WC Act. They also asserted Plaintiff's claims were barred by the exclusive-remedy provision of the IL WC Act. The parties filed cross-motions for summary judgment on the exclusive-remedy defense. The evidence submitted with the motions included deposition testimony of Plaintiff and Brian Brown (Android's human resources manager), a verified statement from Plaintiff, an affidavit, the contract between Android and Staff on Site, and the correspondence from Android redirecting plaintiff's workers' compensation claim.

The manufacturer’s manager also explained that, when a temporary employee arrives, "we say okay, here's the equipment, here's the hours of work, here's what we want you to do. We provide the training and they do the job." The manager specified Android owned or leased the equipment plaintiff used.

Regarding the manufacturer's ability to terminate a worker placed by the staffing company, the manufacturer’s manager testified the manufacturer had the right to remove the worker from its facility and tell the worker to return to the staffing company for reassignment. The manager further testified: "[W]e don't fire them. We can ask the staffing agency not to have them return and-because they're their employees, not ours. So we can say please, end their assignment here, but-you know, it's a matter of semantics. We don't-I don't go out there and tell a temp that you're fired. We just notify the staffing agency to please not have them come back."

Brown acknowledged that Staff on Site could still send the worker back but explained that "at the very least the working relationship would end with the agency" and that Android might need to call the police if "somebody just keeps showing up." Brown surmised, "They could do it, but, like I said, it would get old in a hurry."

Regarding his duties at Android, plaintiff testified that he "started off loading and unloading semis on the south side of the plant which would have been parts coming in and going out to supply the line." Plaintiff explainedhis duties changed before the accident. He testified, "because [he] was such a good forklift driver, they trusted [him] with the engines and transmissions which is a little more complicated than your general forklift or your general material handling." Thus, "[a] day or two before the accident," his assignment changed to "engines and transmissions" and "they [took him] to the other side and gave [him] a day or two of kind of breaking [him] in back there of how things go."

In Plaintiff's verified statement, he stated that prior to the accident he "was never told" that Android had the power to dismiss him from any employment, "was never told" that Android had the power to compel Staff on Site to dismiss him from his employment or from working at Android, and "was never told" that he "had to start or stop working when told by Android." Plaintiff also stated that, prior to the accident, he "did not believe that Android had the power to compel Staff on Site to dismiss [him] from employment at any location" and he "did not believe [that he] was employed by Android nor that Android controlled [his] work performance." Moreover, "[b]y the day of the accident, [plaintiff] worked independently, with less than a minute of instruction from Android."

Following a hearing on the parties' cross-motions for summary judgment, the trial court granted summary judgment in favor of Android. The trial court found no genuine issue of material fact with respect to Android's right to control and direct the manner of Plaintiff's work. In doing so, it found Staff on Site placed Plaintiff at Android to drive a forklift, Plaintiff worked the same hours as other Android employees, Android's employees supervised Plaintiff, no Staff on Site supervisors worked at the Android facility, Android had the right to remove Plaintiff from the Android facility, and Android provided the equipment Plaintiff used. The trial court also found that "a borrowing employer need not have the power to dismiss the employee from his general employment, just the power to dismiss from the borrowed employment."

Accordingly, the trial court concluded that Android was a borrowing employer under section 1(a)(4) of the Act (id. § 1(a)(4)) and entitled to the immunity set forth in the Act's exclusive-remedy provision.

On appeal, Plaintiff argued summary judgment on the exclusive-remedy defense should have been entered in his favor, because it was undisputed Android neither paid Plaintiff's workers' compensation premiums or benefits nor was obliged to reimburse Staff on Site for the expenses. Our Illinois Appellate Court disagreed.

They addressed whether the trial court properly entered summary judgment in Android's favor on the exclusive-remedy defense under the IL WC Act. Their ruling confirmed the IL WC  Act is intended to provide financial protection to workers for accidental injuries arising out of and in the course of employment. Accordingly, the IL WC Act imposes upon the employer liability without fault but prohibits the employee from bringing a common-law suit against the employer. Section 5(a) of the Act sets forth this exclusive remedy: "No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.

The Appellate Court ruled the exclusive-remedy provision is part of the quid pro quo pursuant to which the employer assumes liability without fault but is relieved of the prospect of large verdicts for damages. They further confirmed our IL WC Act specifically incorporates the borrowed-employee doctrine and extends the immunity of the exclusive-remedy provision to borrowing and loaning employers. Section 1(a)(4) provides: "Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay the benefits or payments due such injured employee, such loaning employer is liable to provide or pay all benefits or payments due such employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all sums paid or incurred pursuant to this paragraph together with reasonable attorneys' fees and expenses in any hearings before the Illinois Workers' Compensation Commission or in any action to secure such reimbursement."

No “Cake” For Either Employer—Substantial WC Benefits Were Paid

The Appellate Court noted Plaintiff objected to allowing Android to invoke immunity under the exclusive-remedy provision of the Act, arguing it would be tantamount to "allowing a party to have its cake and eat it too." The Appellate Court ruled the metaphor is inapt here. This case involves whether a borrowed-employee relationship existed under section 1(a)(4) of the Act. There was no “cake” here for either employer; there was joint and several liability. Under the plain language of section 1(a)(4), the liability of the borrowing and loaning employers is joint and several, and the loaning employer is, "in the absence of [an] agreement to the contrary," entitled to reimbursement from the borrowing employer "for all sums paid or incurred pursuant to this paragraph," in addition to the specified attorney fees and expenses. 820 ILCS 305/1(a)(4) (West 2012). Here, there was in fact a specific agreement to the contrary. Plaintiff's argument would have us ignore the plain language of the statute.

Accordingly, the Court ruled Plaintiff presented no persuasive argument upon which to hold that he was entitled to summary judgment on the ground that Android neither paid his workers' compensation insurance premiums or benefits nor was obliged to reimburse Staff on Site for the expenses.

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Synopsis: Illinois Circuit Court Rules IWCC Awards Have To Be Paid in a Lump Sum. How In Tarnation Is That Going to Work?

Editor’s comment: As I have told my readers, bad things happen in IL work comp under a one-party political system. I remain shocked and stunned to see a Circuit Court judge require the City of Chicago, as a party Respondent in a WC claim, to pay a PPD award as a lump sum and penalize them for not doing so with literally no Illinois legislative backup for this concept. Do wage loss benefits need to be paid in a lump sum? Do total and permanent disability benefits also need to be paid in a lump sum? Do we need a Ouija board to figure out what might be owed at any particular time?

The Circuit Court also awarded a hefty amount for attorney’s fees as part of this shocking new ruling—he provided Plaintiff’s/Petitioner’s counsel the tidy sum of $34,247.50. At the time of the award, there was only $63K of the PPD award still due to Claimant? How does Judge McGing award more than half of that amount as an additional attorney fee? Please note over $200K of the final award had already been paid in installments.

If you want to read this shocking ruling, take a look at:

https://s3-us-west-2.amazonaws.com/wcc-public-news-storage-4081/Iannoni%20case.%20PPD%20award%20paid%20as%20lump,%20not%20as%20accrued%20(1).pdf

Please note no one appears to have read the IL WC Act, including the Honorable Judge McGing. The IL WC Act says

§8(e): Schedule of Injuries

(e) For accidental injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity for work resulting from such accidental injury, under subparagraph 1 of paragraph (b) of this Section, and shall receive in addition thereto compensation for a further period for the specific loss herein mentioned, but shall not receive any compensation under any other provisions of this Act.  The following listed amounts apply to either the loss of or the permanent and complete loss of use of the member specified, such compensation for the length of time as follows…

The term “further period” seems fairly simple to me—TTD is paid for a period of time and then PPD is paid for another period of time. Could Judge McGing order TTD to be paid all at once under the same illusory logic as this unprecedented ruling?

I don’t want to characterize the decision of a Circuit Court as “goofy” so I won’t but the concept of “period” doesn’t mean a one-time payment. The other simple term above says “for the length of time.” Either way I have looked at this my entire career, it means permanency or PPD can be paid over time.

If you review the link, Judge McGing looks to Colorado and Montana, as if those States have anything to do with Illinois. I vote we stop checking the WC statutes all across the globe to accurately confirm they have nothing to do with our IL WC Act and system.

I assume the Appellate Court, WC Division will be asked to weigh in on this mess. I know they will carefully read the IL WC Act and constrain their review to the legislation that applies to Illinoisans and not the nice folks in Colorado and Montana and Wherever-ville. You may note if the Appellate Court remands the matter back for further findings by the IWCC or Circuit Court, the entire award will be paid in full.

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

6-4-2019; Whole Lot ‘O Shaking Going On In Springfield, IL—Gene Keefe’s Spin from a WC and “Better Government” Perspective; What Illinois Business Can/Will Expect from SB 1596 and more

Synopsis: Whole Lot ‘O Shaking Going On In Springfield, IL—Gene Keefe’s Spin from a WC and “Better Government” Perspective.

Editor’s comment: Some of this analysis is from our IL State Chamber and I am giving the full attribution for their hard work watching out for YOU!!!. If you are in business or a small gov’t in this State or want to know what is happening in business and small gov’t in this State, please join the State Chamber—for more information, go to www.ilchamber.org.

I salute Chamber President Todd Maisch and legislative guru Jay Shattuck of the IL Chamber for securing last minute legislative victories for their members and all IL businesses and small gov’ts. Sadly, two of the first six bills signed into law this year by Governor Pritzker were major blows to the business/gov’t community. The first law signed by the Governor raised the statewide minimum wage to $15 an hour, while the other SB 1596 added to all IL employers’ costs to the by creating an unnecessary “exception” to our State’s workers’ compensation system that will allow IL employers to be sued civilly for asbestos exposures from decades ago.

Other awful pieces of legislation such as costly data privacy regulations and a proposal to threaten IL petroleum refineries were laid to rest. In the final days of session, a deal was cut between the four legislative leaders and the Governor to pass major pieces of legislation in combination for several business reforms. In addition, the Chamber secured what they feel is a major policy victory for the year, a $45B capital infrastructure program with lots of added taxes and fees to support it. I don’t agree this is a solid a “victory” as both sides claim—it is clearly a boon to the Illinois Road Builders Ass’n who always seem to find ways to make zillions off taxpayers whether the tax money is there or not. I wasn’t aware thousands of bridges and roads were falling apart and these new levies were crucial to avoid our cars and trucks tumbling into rivers across the State.

Sports Gaming and Gambling Lands in IL in a BIG Way

To my understanding church leaders across our State blocked this gambling/gaming concept for years as it would adversely impact poor people and churches/synagogues. A wise friend pointed out “gambling doesn’t hurt poor people, it hurts stupid people.” Let’s hope the religious leaders can get the message to their flocks to avoid wasting their hard-earned money gambling/gaming. Either way it appears to me that our religious leaders just lost their fight over gambling/gaming to our State’s voracious spending appetite.

In short, the IL legislature sent Gov. Pritzker a bill he’s expected to sign that will dramatically expand legal gambling and gaming in Illinois. Existing gambling venues get more gaming positions that can be dedicated to either slots or table games. The bill allows slot machines at O’Hare and Midway airports, as well as at all horse racing venues. The new law adds casinos in communities around the state, such as Waukegan and Rockford. It clears the way for a mega-casino in Chicago with 4,000, count ‘em, 4000 gaming positions. And it legalizes sports betting. To my understanding, you may be able to lay down a best at a professional sports arena on a pending game!!!

This legislation is going to help bring in lots of new jobs and possibly more WC claims for our system.

Recreational Marijuana Coming on January 1, 2020—Keep It Out of Your Workplace!!

Once the bill is signed, Illinois is set to join 10 other States to allow recreational marijuana starting on January 1, 2020. Not sure why the wait when they want to start taxing the heck out of it now.

The law also appears to pardon or eliminate any criminal charges for over 700,000 Illinoisans who were convicted of marijuana possession/use.

To my understanding, the IL State Chamber did maintain an employer’s right to block marijuana use/intoxication in the IL workplace. I agree with the Chamber and it is my strong recommendation you maintain a marijuana-illegal drug-alcohol free workplace. If you want a alcohol and drug-testing protocol, send a reply.

Transportation Modernization Bill

In short, your IL gas tax is going up 19 cents a gallon with other hikes in fees. As I indicate above, it is disappointing to me to be told our roads and bridges are suddenly a shambles when I see no evidence of it.

Illinois Becomes the 31st State to Offer Data Center Tax Incentives

In January of this year, the IL State Chamber Foundation released a study on the potential impact of a data center tax incentive and by June it became a reality. As part of the new budget, SB 690 included language to create a sales tax incentive for new and existing data centers. There is also an income tax credit for data centers that locate in underserved areas. This language was a State Chamber initiative. I join with the Chamber in heralding their hard work in this effort.

Pro-business/Small Gov’t Reforms

Other measures were included in the final budget deal including several other pro-business reforms. Those reforms included the reinstatement of the manufacturers purchasing credit, phase-out elimination of the franchise tax, creation of the Blue-Collar Jobs Act, and data center tax incentives, as outlined above. The IL State Chamber supported these reforms and I strongly agree with them.

“Streaming Tax” Defeated

A proposal floated in early May by the Governor’s office to tax streaming and satellite services to pay for vertical capital projects was defeated. The proposal sought to tax satellite TV and streaming services such as Netflix, Hulu, Xbox Live, and Spotify. While the Governor’s proposal never made its way into legislative format, the concept was soundly defeated. I strongly support the State Chamber’s efforts to block this new tax.

Burdensome Real Estate Property Tax Legislation Stalls

SB 1379 was an initiative of the new Cook County Assessor's office to seek unneeded and duplicative information from property owners with "income producing properties" did not move forward. I own/invest in real estate and despised the concept of this bill. The Chamber provided substantive suggestions to make the bill better. They look forward to continuing to work on this issue with the Assessor and legislative sponsors before this is considered further.

Costly Data Regulations Defeated

For the second time in the last three years, the Chamber and other technology trade associations were successful in defeating legislation pushed by trial lawyers to enact costly and burdensome data privacy legislation. Drafted to hurt our state’s tech community, this legislation also would have negatively applied to small and medium sized businesses. I salute the hard work of the IL State Chamber to block this silliness.

Workplace Sexual Harassment Reform Bill

SB 75 is legislation creating extensive changes to limiting your employment agreements for harassment and employment discrimination related to non-disclosure agreements and mandatory arbitration. The legislation requires disclosure by any employer of a final adverse administrative or final judicial ruling to the Illinois Department of Human Rights. All Illinois employers will be required annually to have all its employees trained regarding sexual harassment. Yikes. This bill passed both Houses and may become law. If you have concerns, send a reply.

Business Regulation

HB 2127 would have required any private business that contracts with the State for information-technology services over $500,000 to install tracking software on every computer that works on a state project. Contractors with the state would pay a per employee fee to the software tracking company for spyware to record every user's keystroke, mouse click, browsing history, program usage and time spent on a computer. Usernames, passwords, confidential and proprietary personal and company information would be captured by the third party. The IL State Chamber was opposed to this legislation as government contracting process already has thorough accountability and oversight. I join with them in their opposition to what a I consider a wildly stupid bill.

Employment Law

SB 471 would have created the “Healthy Workplace Act.” This legislation would have mandated 40 hours of paid sick leave to all full and part time employees. The legislation is still in committed. I again oppose legislation where State gov’t is dictating to private business and local gov’ts.

HB 834 amends the Equal Pay Act of 2003 and provides an IL employer may prohibit a human resources employee, supervisor, or other employee whose job responsibilities require or allow access to other employees' wage or salary information from disclosing that information without prior written consent. This legislation is pending signature by the Gov.

HB 252 amends the Illinois Human Rights Act and provides that "employer" includes any person employing one (instead of 15) or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. This silly, anti-small business bill is pending signature by the Gov.

HB 2233 amends the IL Code of Civil Procedure providing within the discretion of the court, a jury may be asked (rather than required by the court and must be required on the request of any party) to find specially upon any material question or questions of fact submitted to the jury in writing. Any party may request special interrogatories. This is pending signature and coming to a courtroom near us.

Healthcare

While the IL State Chamber supported the overall SB 689 for its pro-business reforms, SB 689 contained language to enact a managed care provider tax. The IL State Chamber was able to get the language less burdensome on employers. It is pending signature by Governor Pritzker.

Taxes

SB 687 imposes punitive graduated income tax rates effective January 2021, if the constitutional amendment authorizing graduated rates is approved by the voters. The bill would raise the top rate on individuals and corporations to 7.99% (10.49% for corporations with the 2.5% replacement tax), making Illinois’ income tax burden one of the highest in the nation. I strongly oppose this mess that I feel will drive doctors, lawyers, successful corporations and other contributors out of this State.

There is lots of other stuff that I don’t feel my readers would care about—if you want the link to all of it, send a reply.

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

Synopsis: What Illinois Business Can/Will Expect from SB 1596—Multi-million dollar mesothelioma claims from possible exposure(s) decades ago are now on your plate!

Editor’s comment: Please note this is not an IL claim/ruling—I feel it may be illustrative of what is coming at you in Illinois. This is from the June 2019 Longshore/Maritime Update which is now edited/written by Ken Engerrand—full attribution is provided to him. If you want to get on that free Update list for Longshore/Maritime Legal News, send him a request at

kengerrand@brownsims.com

His Article: Longshoreman recovers from stevedoring companies for mesothelioma. Craft v. Ports America Gulfport, Inc., No. 2018-CA-0814, 2019 La. App. Lexis 807 (La. App. 4 Cir. May 8, 2019) (Bartholomew-Woods)

Opinion (I have tested this link and consider it safe for your review)

Jerry Craft, who loaded and unloaded cargo from ships at the Port of New Orleans was diagnosed with mesothelioma at the age of 82. He brought suit against his stevedore employers in Louisiana state court for exposure to asbestos during his employment on the waterfront from 1953 to 1989. The case proceeded to trial against the stevedores that declined to settle, and the jury found the defendants negligent and awarded Craft $2,960,000. After the trial judge reduced the award to $986,666.68 based on credit for the settlements, the defendants filed post-judgment motions attacking the negligence finding and the award of $1 million for future medical expenses. The judge denied the first and granted the second. Craft and the defendants both appealed. Craft’s appeal asserted that the jury abused its discretion in awarding him only $1.6 million in general damages (past and future pain and suffering, disability, and loss of enjoyment of life. Acknowledging that Craft had suffered while undergoing several procedures and continually receiving chemotherapy since his diagnosis, the court declined to disturb the jury’s award of general damages. The court of appeal did, however, reverse the denial of future medical expenses of $1 million. Craft did not produce evidence of the amount of future medical costs, or the frequency or type of future medical treatment that was required. But he did present evidence from his physicians that he would need ongoing chemotherapy and palliative care for the rest of his life, and he presented evidence of the $360,000 in past medical expenses. The appellate court held that this was sufficient to support the jury’s award of $1 million for future treatment. The stevedoring companies also argued that Craft failed to establish a duty for stevedoring companies in the 1960s and 1970s regarding handling asbestos as there was no evidence that they knew or should have known of the effects of asbestos or that they violated any governmental regulations or industry standards. However, Craft presented the testimony of Professor Markowitz, an expert in the field of history with a subspecialty in occupational health, public health, and environmental health. He testified that there were articles published in the early 20th century on the dangers of asbestos and that by 1930 it was established that asbestos could cause disease or death for those who inhaled asbestos fibers. Concluding the trial court did not commit manifest error in allowing the testimony of Professor Markowitz over the objection that he was a historian and not a qualified industry expert, the court of appeal upheld the negligence finding.

You can and will note there is multi-million dollar exposure. Please contact your broker asap to insure you have coverage and aren’t “bare.” Prior to May 17, 2019, you didn’t have this risk to manage, I promise you.

KCB&A has a solid defense specialist in Bradley Smith who can help and guide you when these new lawsuits hit your risk models.

5-27-2019; Now What Do We Do With SB 1596--Are Latent Injuries Truly in the Mix?; Brad Smith, J.D. on Your Legal Liability for Open and Obvious Conditions; Happy Memorial Day to All and More

Synopsis: OK, IL WC Bar—Now What Do We Do With SB 1596?? Are “Latent Injuries” Truly In The Mix?

Editor’s comment: As I reported a week ago, ITLA got its wish and obtained the enactment of SB 1596 that is nutty, confusing and perplexing legislation which, for the first time, allows IL workers to sue their employers in Circuit Court for negligently causing whatever the heck “latent injuries” might be. As you will read, I don’t agree the term “latent injuries” should actually be used but seek my readers and industry comment about that irritating and somewhat “crazy-making” term.

The pertinent part is in the IL WC Act now. This new law states:

Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such injury or death, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the nonwaivable right to bring such an action against any employer or employers.

If you read the law, there are two issues of enormous importance. First we are left to figure out what a “Statute of Repose” might be in the IL WC Act because those injuries/deaths are now the subject of civil litigation because Sections 5 and 11 may no longer apply to them. I do know Section 5 is the “exclusive remedy” limit on any injury/death occurring at work. So, if you have a “statute of repose” that covers an injury/death, the worker can either bring either a WC claim, a civil claim or both!

What is a Statute of Repose?

A statute of repose is basically a cut-off date whether a law suit is filed or not. Such legislation is hated by Claimant attorneys because it can cut off a Plaintiff’s right to recovery if they had something building inside them that doesn’t come out for months, years or decades.

Section 6 of the IL WC Act has a single statute of repose that says (in pertinent part):

In any case of injury caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 25 years after the last day that the employee was employed in an environment of hazardous radiological activity or asbestos, the right to file such application shall be barred.

If an accidental injury caused by exposure to radiological material or equipment or asbestos results in death within 25 years after the last day that the employee was so exposed application for compensation for death may be filed with the Commission within 3 years after the date of death, where no compensation has been paid, or within 2 years after the date of the last payment of compensation where any has been paid, whichever shall be later, but not thereafter.

After lots and lots of research, this seems fairly clear to me—these is a limitation of 25 years on claims of exposure to radiological activity or asbestos. Ergo, claims involving radiological and asbestos exposures are now the subject of SB 1596 and can potentially cause the right to civil litigation. I have seen mention of “beryllium” as being part of this new legislative concept. You may note beryllium doesn’t appear at all in the IL WC Act. It is a rare mineral that may or may not be radioactive. I assume you and all my readers don’t need to concern yourselves with non-radioactive beryllium but, I feel if you have people working with radioactive beryllium (or any other radioactive substance), the new law may apply to them.

Where/How Did “Latent Injuries” Come Into the Mix?

Again, I have done exhaustive research. I don’t know and would ask you and/or anyone you know why legal, insurance and other risk managers are now mentioning and voicing concerns about “latent injuries.” There is no statute of repose in the IL WC Act for “latent injuries,” just exposure to radiological materials and asbestos—the IL WC Act is very clear about it. If I am wrong about this—please, please tell me why! I will admit any mistake on my part to my many readers but I clearly think I am right—latent injuries is a very broad term that shouldn’t be used in the context of SB 1596.

In at least one source, the PR folks at ITLA are telling everyone who will listen that “latent injuries” are defined as medical conditions resulting from workplace exposures to things like asbestos and beryllium. At least one industry publication from a national insurance brokerage indicated “latent injuries” include, and I quote (by cutting and pasting):

lead poisoning, black lung (pneumoconiosis), mesothelioma and asbestosis, silicosis, skin cancer, lung cancer, occupational asthma, byssinosis, carpal tunnel syndrome, repetitive strain injuries, hearing loss, and traumatic brain injury.

First, I have no idea how all those claims might fall under SB 1596 that appears limited to radiological materials and asbestos, per the terms (new and old) of the IL WC Act. Second, if that quote is accurate, thousands of pending and potential IL workers’ comp claims could possibly be brought by wealthy Plaintiff lawyers in Circuit Court under the aegis of this new law and the IL WC Commission may be suddenly otiose and might be unworthy of continued funding at some point.

At least one other industry publication said this new legislation “expands the coverage of the Workers’ Compensation Act.” I want to make clear my view that statement is simply and unequivocally wrong—SB 1596 does nothing, no change at all, to the implementation of the IL WC Act. SB 1596 creates a new civil action unfettered by the “exclusive remedy” concept but has little to do with the other terms and benefits of the IL WC Act.

What Does a Humble WC Lawyer Do When Faced With An IL WC Claim That Might Involve Exposure to Asbestos or Radiological Materials?

From the perspective of the Plaintiff/Petitioner lawyer handling an IL WC claim that might involve the exposures above—I am fairly sure they would need to at least let your clients consider the possibility of either a simple WC claim or a much more complex and expensive civil claim—if you don’t have that capability, refer them to someone who does and keep a record of your referral. You may want to insure your client knows of the risks/rewards.

From the perspective of Defense lawyers across the State, you have to tell your clients precisely what happened in this nutty State. If you are contacted by and/or receive defense of a claim for either radiological or asbestos exposure (or both), you need to let them know there is a non-waivable right for the worker to bring both a WC claim and/or a civil claim. The WC claim would/should be covered by the WC coverage. An employer should not be able to block the civil claim by having WC benefits offered and accepted by the injured worker or his family—that is what I feel “non-waivable” means. I don’t feel “non-waivable” means you can’t settle the claim with a release in exchange for payment.

To settle, the employer should have to get both approved WC settlement contracts and a general release of the civil claim. I hope.

I would appreciate anyone’s thoughts and comments on this article. Please feel free to post them on our award winning blog.

Synopsis: The Federal Seventh Circuit Appellate Court Rejects Premises Liability Claim for Open and Obvious Condition Against Menards.  Analysis by KCB&A’s top GL ace, Bradley J. Smith, J.D.

Editor's Comment: In McCarty v. Menards, Inc., a business invitee sued Menards for tripping over a product display sign. During the proceedings in the federal District Court, the federal judge entered summary judgment for Menards and threw out the lawsuit. Then the Seventh Circuit Court of Appeals in an opinion written by Justice St. Eve affirmed that dismissal. She held that the sign was open and obvious and that the business invitee should have seen and appreciated it.

On February 13, 2017, the business invitee (accompanied by a colleague) went to the Menard’s store in Antioch, Illinois, to purchase materials for his company. He was purchasing sheets of plywood. The display sign at issue was knee high with protruding wooden legs.

The business invitee was looking around the Menards store for boards for a period of time. Then he moved a few boards from a middle stack. When he did that, he tripped over a piece of wood that was part of the display sign in front of the right-hand pile. The photograph submitted to the Appellate Court demonstrated a display sign protruding out a significant distance from the stacks of wood. It was a relatively large and certainly a noticeable sign.

In Illinois, landowners owe business invitees a duty of care to keep their premises reasonably safe. Illinois courts generally consider four factors when deciding if duty of care exits:

(1) the reasonable foreseeability of the harm;

(2) the likelihood of the injury;

(3) the magnitude of the burden of guarding against the injury; and

(4) the consequences of placing that burden on the premise’s owner.

The “open and obvious doctrine” implicates the first two factors of the duty of care analysis on this retailer.

When the open and obvious doctrine applies because the condition is open and obvious, the risk of harm is considered slight. Essentially, people are expected to appreciate and avoid open and obvious conditions.

Federal Judge St. Eve concluded in her opinion that:

“A reasonable person in [the business invitee’s] position, who saw that there were signs, chose the stack he wanted by looking at the signs, walked right up to the signs, was working within a few feet of the protruding sign, and either repeatedly stepped over it or turned toward it, would have notices the large sign and legs as a tripping hazard.”

Since there were no material disputes concerning the condition’s physical nature, then the trial court and subsequently the appellate court were able to find the condition an open and obvious one as a matter of law.

This opinion is a valuable interpretation of premises law for retail and restaurant business owners. It applies the duty analysis in a reasonable and fair manner. This allows businesses to have some predictability as to what they are responsible for. Sometimes people do need to observe their surroundings and use common sense to avoid open and obvious conditions. It is not always someone else’s fault.

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