7-2-2019; Holy Smokes—IL Appellate Ct Rules FELA Damages for Lost Wages Are Taxable Income!!! Will WC Benefits/Settlements Follow?; Good News and Bad News from The Second City and more

Synopsis: Holy Smokes—IL Appellate Court Rules FELA Damages for Lost Wages Are Now Taxable Income!!! Will WC Benefits/Settlements Follow?

 

Editor’s comment: In Munoz v. Norfolk Southern Railway Co, No. 1-17-1009, issued June 28, 2019, the Appellate Court of Illinois, First District considered a claim by a railroad freight conductor claiming negligence for injuries during his work at a RR conductor. A jury awarded him $821,000, including $310,000 for past and future lost wages. After the verdict, Norfolk moved for a setoff, claiming Munoz owed taxes on the lost wages under the Railroad Retirement Tax Act (RRTA) (I.R.C. § 3201 et seq. (2012)). The trial court denied the motion, relying on cases holding that, like personal injury judgments under section 104(a)(2) of the Internal Revenue Code the RRTA does not require employers to withhold taxes for FELA personal injury awards.

 

Norfolk RR appealed, arguing section 104(a)(2) only applies to nonrailroad employees' personal injury awards. Moreover, Norfolk asserted because the RRTA funds employees' retirement benefits provided by the Railroad Retirement Act of 1974, the statutes should be read together. That makes a FELA award for lost wages taxable "compensation" subject to a withholding tax. Alternatively, Norfolk contended if the IL Appellate Court found the applicable RRTA language ambiguous, we should look to Internal Revenue Service (IRS) regulations, which have interpreted "compensation" in the RRTA to include payments for lost wages.

 

The IL Appellate Court initially rejected Norfolk's arguments and affirmed the trial court. The Appellate Court found the RRTA defines "compensation" as money paid to an employee for "services rendered" and lost wages cannot be paid to an employee for "services rendered."

 

After the first decision by the IL Appellate Court, the United States Supreme Court held in BNSF Ry. Co. v. Loos, FELA lost-wages awards constitute compensation subject to withholding taxes. The Illinois Supreme Court entered a supervisory order directing us to vacate our initial judgment and consider the effect of Loos. Munoz v. Norfolk Southern Ry. Co. Based on Loos, the IL Appellate Court conclude Munoz's lost wages award was compensation taxable under the RRTA. Thus, the Court vacated their prior disposition, reversed the order of the trial court, and remanded.

 

Background

 

Plaintiff Munoz injured his shoulder and neck when a train he was working on in Norfolk's Calumet Yard came to a sudden stop. Munoz sued Norfolk for negligence under the FELA, and sought damages for lost wages, medical bills, loss of future earning capacity, and pain and suffering. Norfolk admitted liability, leaving damages as the only issue. Norfolk asserted in a trial brief any lost earnings award must be offset by Munoz's share of RRTA taxes, which, under the RRA, fund railroad employees' retirement benefits. The trial court instructed the jury, in part, "If you find for the Plaintiff, any damages you award will not be subject to income taxes and therefore you should not consider taxes in fixing the amount of the verdict." The jury returned a verdict in Munoz's favor, awarding him $821,000 in damages, including $310,000 for past and future lost wages.

 

Norfolk filed a posttrial motion arguing it had a $14,560.79 statutory lien on the verdict for "sickness benefits" it paid Munoz and asking for a $16,610.23 set off from Munoz's $310,000 lost wages award for his share of RRTA taxes. Munoz did not contest the lien for sickness benefits; however, as to his lost wages portion, Munoz contended lost wages should be treated no differently under the RRTA than other personal injury awards, which are not subject to income tax withholding under the Internal Revenue Code. After a hearing on the motion, the trial court followed the Missouri Supreme Court in Mickey v. BNSF Ry. Co., which held, in part, that like the exclusion for personal injury awards under Internal Revenue Code, a FELA lost wages award does not constitute income and, therefore, does not qualify as taxable "compensation" under the RRTA.

 

Analysis

 

Norfolk contends the RRTA is not ambiguous, asserting that the plain language of the statute, when read in conjunction with the RRA, supports a finding FELA lost wages award is compensation subject to withholding taxes. Alternatively, Norfolk asserted if RRTA language was ambiguous, the Appellate Court should look to IRS regulations and RRA information notices, which support withholding.

 

When Congress enacted the RRTA in 1937, it defined "compensation" to include lost wages. But, Congress amended the statute in 1975 and again in 1983, removing all reference to "pay for time lost." Section 3231(e)(1) of the RRTA now defines compensation as "any form of money remuneration paid to an individual for services rendered as an employee to one or more employers." Several state supreme courts held FELA lost wages awards constitute compensation subject to RRTA taxes.

 

In Loos, Plaintiff sued his employer, BNSF, alleging the railroad negligently caused his knee injury. The FELA claim resulted in a jury verdict in Loos's favor for pain and emotional distress, lost wages, and past medical expenses. BNSF moved to offset the lost wages award by the amount of Loos's share of taxes owed under RRTA. The trial court denied the motion, finding that no RRTA tax to be owed on the award, and the appellate court affirmed.

 

The Supreme Court (or SCOTUS) reversed. Our highest court noted taxes under the RRTA are measured by an employee's "compensation," which the RRTA defines as "any form of money remuneration paid to an individual for services rendered as an employee". The Court found this definition textually similar to the definition of "wages" in the Federal Insurance Contributions Act and the Social Security Act. SCOTUS found its earlier holdings were helpful in defining the term "compensation" under the RRTA. The Court noted, "wages" under the SSA and FICA included awards of backpay and severance payments, respectively, because those awards represented pay for active service as well as pay for periods of absence from active service. In line with those cases, the Court concluded "compensation" under the RRTA can encompass pay for periods of absence from active service, as long as the remuneration in question "stems from the `employer-employee relationship.”

 

The Court found that damages for lost wages awarded under the FELA "fit comfortably" within that definition. Like backpay, lost wages damages compensate an employee for time during which he or she is "`wrongfully separated from [work].'" Thus, just as backpay falls within the definition of wages, FELA damages for lost wages qualify as "compensation" and are taxable under the RRTA.

 

The Court rejected Loos's assertion that FELA damages should not be deemed "compensation" because they are "involuntary payments" that compensate an employee for an injury rather than for services rendered. The Court noted, an award of backpay compensating an employee for his wrongful discharge were "wages" under the SSA, even though it was "occasioned by `the employer's wrong.'" "Applying that reasoning," the Court stated, "there should be no dispositive difference between a payment voluntarily made and one required by law.”

 

The IL Appellate Court followed the ruling by SCOTUS in Loos and found the compensation was taxable income.

Summary by Gene Keefe

 

It is my feeling as a veteran WC defense lawyer that lots of awards in WC across our country involve wage replacement benefits. In IL, we have TTD and TPD and total and permanent disability awards. On a similar note, all death awards provide the surviving spouse and children wage replacement benefits that are missed due the passing of decedent. I ask my readers how the SCOTUS ruling in Loos wouldn’t apply to such awards in this State. I ask readers from other states how this ruling by our highest court wouldn’t apply to WC claims in other states.

 

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

 

 

Synopsis: Great News and Less-Than-Great News from The Second City.

Editor’s comment: Let’s start with Great News!!!

 

For the first time ever, the City of Chicago has an actual risk manager!! Tamika Puckett, an executive from Atlanta recognized as one of the nation’s top risk managers, has been named the city of Chicago’s new Chief Risk Officer, I have learned. I am told she is a brilliant manager and is very strong on statistics and data-based handling of ERM or enterprise risk management. I wish her every good thing and stand ready to help her in any and every way. I am sure she will provide great oversight of Gallagher Bassett, the new WC adjusting company. Chicago Mayor Lori Lightfoot announced the 42-year-old former director of enterprise risk management for the City of Atlanta who was overseeing workers’ compensation and property and casualty insurance programs will head a newly created Office of Risk Management. Her first task will be to overhaul the City’s $100+ million-a-year workers’ compensation program, and stop spiraling multi-million-dollar city settlements and verdicts from police misconduct lawsuits that last year hit a record $113 million. We hope she is also going to manage the City’s Police and Fire Disability program that has been as badly run as the WC defense program.

 

“It is imperative for the city of Chicago to have a rigorous and robust risk management office to identify and mitigate potential threats to the economic viability of our city,” Mayor Lightfoot said in an emailed statement. “Tamika is an accomplished professional who has proven she is ready to lead this charge and create a proactive, multi-layered strategy that will protect the city of Chicago and its residents,” the mayor said of her new hire.

 

Now the Less-Than-Great News: Service Taxing Lawyers and Accountants—Yucch.

 

Mayor Lightfoot tried hard to get our new Governor and IL State Government to take over the giant gaping morass that is her inherited fake gov’t pension program and billions in debt. If you don’t know why I call it a fake gov’t pension program, send a reply and I will be happy to explain. I do not and cannot blame Mayor Lightfoot for the mess but the financial clean-up is going to be close to impossible. When Governor Pritzker put the kibosh on the Mayor’s pleas for the State to take over the City’s pension morass and allowing them to raise money by taxing the fake pensioners who are getting over $100K a year, Mayor Lightfoot is now focused on another approach that I consider grossly counter-productive. She announced she wants to raise billions by taxing legal and accounting services. Please don’t do that, Mayor!

 

Understanding I am a lawyer and have been one more than half of my life, I assure our brilliant Mayor she is making a giant mistake in focusing on taxing lawyers and accountants to bail out the City’s fake pension issues. I remember former Mayor Harold Washington (who spent a part of his career as an IL WC Arbitrator, if you can believe it) who imposed a “head tax” on all employees in the City. His comment was the “head tax” on each worker for a company would be a “mere drop in the bucket” for businesses. Well, rather than pay the “drop in the bucket,” thousands of companies pulled up stakes and fled from Chicago and never came back. If this new tax lands, I am certain it will happen again.

Here are some simple thoughts:

 

It is double taxation for a company to have to pay massive IL corporate taxes and then have to pay additional taxes for the necessary services of their lawyers and accountants when they have to be in Chicago.

 

It will be virtually impossible for lawyers and accountants to “pass-through” such costs to our clients—if we try to do so, national and regional clients could care less about our firms being in Chicago and will move their business to other offices/lawyers/accountants outside Chicago.

 

The simple reason no one is talking about service taxing the financial industry and particularly stock/bond traders is they have already quietly made it clear they will take the Chicago Stock Exchange and the Chicago Mercantile Exchange to Dallas or some other southern city the moment anything this dopey is proposed, much less enacted. The City of Dallas, Texas has already vowed to provide them anything and everything they need to move.

 

Plaintiff-Petitioner lawyers are all going to move their operations and staff out of the City (and maybe out of the State) very rapidly. The only reason such lawyers work in Chicago is basically tradition—Claimants are used to “coming downtown.” Such operations can rapidly be moved to neighboring cities.

 

Defense lawyers don’t have to work in Chicago right now—many of them already “remote in” and can continue to do so. They can move their offices and staff out of the City to handle all the “remoting” that has been going on for more than a decade. Yes, they will have to bill when they go to the Courts—we can all expect the Chicago federal, state and admin courthouses to be more digital and allow for attorneys to “virtually” try claims without having to come into the City to do so. If you aren’t aware of it, New York state is already doing this and has been doing it for some time.

 

Here are Gene Keefe’s Thoughts on this Financial Mess:

  • First and foremost, the City of Chicago is hilariously overstaffed and has redundant government, just like State government. Start by cutting costs/staff and non-essential stuff. Consider announcing what you are doing to give us all hope someone is doing something—tell all Department heads to cut budgets by 15% immediately. Next year, consider doing it again. Trust me, the City will get along fine.

 

  • Consider blending the Police Department and Fire Department into a single “Community Service” Department. Travel to Glencoe, IL and ask how they have been doing it for decades. The lines between cops, firefighters and EMTs should be eliminated. When you have a fire, the cops put on the funny red fire-hats and pick up hoses and “put the wet stuff on the red stuff.” When the fire is out, some of the cop/firefighters go back to being cops. The City of Chicago would save zillions to do this.

 

  • Bring every injured City worker rapidly back to work and get all City workers off the taxpayer’s dole—the City has hundreds of sedentary and light jobs. Don’t hire anyone to fill such a position until everyone on WC or disability is offered such a position.

 

  • Please, please stop/reform the Fake Unfundable Pension issue for incoming/new workers. Bring in a 401K program! The old Fake Pension system has bankrupted the City. If you don’t do something about it for new workers, there is no hope of any future mayor ever getting back to financial normalcy.

 

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

Synopsis: New Laws to Watch Out For In Illinois.

Editor’s comment: In the next six months, these new developments are hitting the risk and claims industry:

  1. Recreational marijuana lands in Illinois on January 1, 2020. Please start a drug and alcohol free workplace program—if you want my draft program, send a reply. If you know someone who wants an old marijuana bust/conviction expunged from their record, send a reply.

  2. Stalking behavior now includes sending unwanted messages via social media. The new law expands the provision of who can bring a petition under the anti-stalking law to include an authorized agent of a workplace; an authorized agent of a place of worship; and an authorized agent of a school.

  3. Our kids are going to be in active shooter/threat school safety drills to be conducted within 90 days of the start of the school year. The new law requires the drills be conducted on days and times when students are present in the building. The law also requires participation from all school personnel and students present and for law enforcement to observe the drill.

  4. The IL Department of Financial and Professional Regulation shall require each new applicant complete a sexual harassment training program provided by the Department and each licensee complete a sexual harassment training program provided by the Department before renewal of his or her license.

  5. Be careful holding your cell phones while driving or even stopped at a light—you are now supposed to be ticketed if you have your phone in your hand. No warnings!

6-25-2019; Good News and Bad News for the IL Work Comp Community and more

Synopsis: Good News and Bad News for the IL Work Comp Community.

 

Editor’s comment: Both the State of Illinois and the City of Chicago are in the news and it is certain to be notable for all of my readers. I hate to start with the bad news but we are all grown ups and have to deal with all of it.

 

Starting in a week on July 1, 2019, our IL gas tax will double, driving the cost of a tank of gas up 19 cents a gallon. This money is supposedly ear-marked for “capital improvements” of bridge and road repairs. That isn’t completely accurate as the money is being used for those needs along with lots of others. In my view, the concept of ear-marking taxes in this fashion is to confuse folks that don’t want higher taxes.

 

The overall IL State Budget, including this capitol improvement thing is going to be at an all-time record high by like $10B in one year!. I am sure in my lifetime and legal career, I have never seen the budget jump as it is doing this year under the current regime.

 

IL State Taxes and fees and everything is going up, up and up higher. Illinoisans will pay more for gas, vehicle registration, cigarettes/vaping and parking and more.

 

The new laws also increase the number of casinos in Illinois, legalizes sports betting, and hikes taxes on video gaming, among other changes. I am sure ministers, rabbis, priests/nuns and others fought to block gambling and other vices that are now fully legal in this State, due to our insatiable gov’t spending needs.

Doubling Illinois’ Gas Tax With the City of Chicago’s Combined Gas Tax to Soon Exceed $1.00 a Gallon!

In a week, the new and odd tax plan doubles Illinois’ State gas tax to 38 cents from 19 cents per gallon, which will vault the total tax burden on Illinois gas beyond states such as New York and California to second-highest in the nation, according to 2018 data from the Tax Foundation. The increase will be effective July 1. I believe Illinoisans are going to face the top State combined income, real estate, sales, cigarette and gas tax load of all 50 states. The IL state motor fuel tax will also be tied to inflation, meaning it will automatically rise in future years without lawmaker approval. In addition to State-level increase, the bill allows Chicago to increase its local gas tax by 3 cents. It allows Lake County and Will County to impose a gas tax of up to 8 cents per gallon. And DuPage, Kane and McHenry counties would be able to double their 4-cent-per-gallon gas taxes to 8 cents. These additional hikes may end up making Illinois’ average state and local gas tax burden the highest in the nation. If the Chicago City Council approves a local gas tax increase on top of the State’s increase, drivers at Chicago filling stations would pay 99 cents in taxes and fees on each gallon of gasoline – an effective tax burden of more than 40%.

Hiking Vehicle Registration Fees/Taxes

Next year, when you register your car, IL motorists will see a $50 annual increase in vehicle registration fees for most vehicles next year – up to $148 from $98. Please note the actual cost of registering a car didn’t go up that much—this is another tax. Illinois’ vehicle registration fee was just $79 as recently as 2009. Most other vehicle registrations, such as buses, trailers and oversized vehicles, will see a $100 increase.

$1 A Pack Cigarette Tax Hike

This is called a “sin-tax” because no one fights to make cancer-sticks cheaper. Chicago already imposes the highest cigarette tax in the United State, at $7.17 per pack as of 2016. Illinois charges the fourth-highest cigarette tax in the Midwest at $1.98. The new capital plan hikes this tax by $1 per pack.

According to the Illinois Department of Revenue, tax dollars generated by cigarette sales have declined every year since 2015. Cigarette taxes are volatile, as shown in the Tax Foundation’s recent analysis of cigarette tax revenues from 1955 to 2018 across all 50 states. This can be attributed in part to a decline in tobacco smoking, as well as the ability of smokers in high-tax states to buy smuggled tobacco from bordering low-tax states, like every State that isn’t Illinois.

Recreational Marijuana To Be Legal in Illinois On New Year’s Day, 2020

Our new Governor just signed into law a new provision to make marijuana legal and tax it heavily. They expect to raise $500M a year with this new concept. Please note it remains a very bad idea to smoke marijuana and I recommend all the doctors I know make sure their patients are told this simple fact. Smoking anything is bad for your mouth, throat and lungs.

Parking tax hikes

Parking garage users will see an increase in their taxes starting Jan. 1, 2020. For hourly or daily parking garages, taxes would go up by 6%. Monthly or annual parking spaces would be slapped with a new 9% tax. All of this hurts IL WC lawyers in downtown Chicago and most Illinois cities.

What Does It All Mean to the IL WC Community?

In short, some of the money will go for jobs and new WC claims may come from such work.

I also assume private industry jobs and humans are going to be moving to Indiana, Iowa, Michigan and Wisconsin, our neighboring states. KCB&A has lawyers in those states so if you need aggressive legal counsel for your litigation needs, send a reply.

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

Synopsis: Great News!!! New Chicago Mayor Lori Lightfoot Confirms City Hires Gallagher Bassett to Oversee Workers' Comp Defense Program.

Editor’s comment: As I have advised, the City of Chicago needs expert WC claims handling for their WC program and the new Mayor appears to have gotten it. If any of my readers know who to talk to about bringing great WC defense work to City of Chicago claims, please send a reply. For decades, the only way to get such work was to heavily donate to the former “Boss” who managed the WC defense program from afar.

I happily report the City of Chicago will transfer day-to-day control of its $100 million-per-year city workers’ compensation program, which for decades was largely handled in secret under the auspices of that now-indicted Alderman, to a private claims handling company in Gallagher Bassett. They are one of the top national names in the TPA industry.

A first-time audit, performed by outside auditing firm Grant Thornton, found the City’s WC claims program did not operate according to industry best practices, staff members were poorly trained, and it lacked “comprehensive policies and procedures governing claim handling, which can lead to inconsistent claim outcomes for workers,” according to Mayor Lightfoot’s office. The audit further indicated Chicago’s workers’ comp program also lacked key protections against WC fraud, though auditors did not specifically identify any in their report.

The City’s workers’ compensation defense program was thrust into the spotlight in November, when federal agents raided the City Hall offices of the Alderman handling it. At the time, that Alderman was the chair of the powerful City Council Finance Committee chairman who had kept the program under tight wraps during his more than three decades of nearly continuous control of the committee, constantly fighting efforts by the City inspector general to look into the program’s inept and political operations. After federal prosecutors charged that Alderman in early January with attempted extortion for allegedly trying to shake down Burger King restaurateurs, then-Mayor Rahm Emanuel announced he would remove the program from the committee and instead put the city Finance Department in charge of it.

I note the City has two other “semi-work comp” programs when you consider the City’s Police/Fire Disability program and the Department of Aviation program. At present, I don’t know what is happening with these programs and await further news.

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

Synopsis: New Laws to Watch Out For In Illinois.

Editor’s comment: In the next six months, these new developments are hitting the risk and claims industry:

  1. Recreational marijuana lands in Illinois on January 1, 2020. Please start a drug and alcohol free workplace program—if you want my draft program, send a reply. If you know someone who wants an old marijuana bust/conviction expunged from their record, send a reply.

  2. Stalking behavior now includes sending unwanted messages via social media. The new law expands the provision of who can bring a petition under the anti-stalking law to include an authorized agent of a workplace; an authorized agent of a place of worship; and an authorized agent of a school.

  3. Our kids are going to be in active shooter/threat school safety drills to be conducted within 90 days of the start of the school year. The new law requires the drills be conducted on days and times when students are present in the building. The law also requires participation from all school personnel and students present and for law enforcement to observe the drill.

  4. The IL Department of Financial and Professional Regulation shall require each new applicant complete a sexual harassment training program provided by the Department and each licensee complete a sexual harassment training program provided by the Department before renewal of his or her license.

  5. Be careful holding your cell phones while driving or even stopped at a light—you are now supposed to be ticketed if you have your phone in your hand. No warnings!

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.

 

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