6-28-2021; Temp Workers in IL WC Can't Sue Borrowing Employers; Ronald Eugene Biery RIP and more

Synopsis: In IL WC, Temporary or Staffing Worker Can't Sue Borrowing Employer For WC-Covered Injuries. This is a “Must Read” for IL Staffing Risk/Claims Managers.

 

Editor’s comment: In Torrijos v. International Paper Co., No. 18-L-75, 06/22/2021, published, the Illinois Appellate Court ruled a worker's personal injury suit against her borrowing employer was barred by the exclusive remedy provision of Section 5 of the Workers’ Compensation Act.

 

International Paper Co. (or IPC) and Cano Container Corp. are packaging companies. In 2015, IPC purchased a glue machine from Cano and assumed its lease of a packaging plant in Aurora. IPC contracted with Kane County Personnel Inc. (or KCP), a staffing company, for workers. KCP hired Plaintiff Torrijos and sent her to the Aurora plant run by IPC.

On Plaintiff’s first day, Cano Container allegedly provided Torrijos with safety equipment and her assignment for the day. According to Claimant, no one from the staffing company ever came to the plant to supervise her work, and she considered a Cano supervisor to be her boss even though she understood KCP was hired her and was her “employer.”

When Torrijos reported for work, Cano Container assigned her to work at the glue machine. When the machine stopped, Claimant stepped down from the platform of the loading station and began to clean the machine table. As she was wiping, the machine restarted.

When the machine restarted, Claimant’s hand became trapped inside. She suffered severe injuries requiring multiple surgeries. Claimant’s claim was accepted and she received workers’ compensation benefits from KCP and its WC insurer.

Thereafter, Claimant filed a third=party lawsuit in the circuit court of Kane County against IPC. Torrijos named Cano Container and KPC as respondents in discovery as well.

Under Illinois law, Plaintiff in any civil action may designate parties other than named defendants as respondents in discovery if she believes they have information essential to the determination of who should properly be named as additional defendants. A person or entity named as a respondent in discovery may be made a defendant in the same action within six months.

IPC removed the case to federal court. Notwithstanding removal to federal court, the case remained on the Kane County management call. Later, a federal trial court judge remanded the case to the state court, since Cano Container had been joined as a defendant, eliminating federal jurisdiction.

Back in state court in Kane County, IPC moved for summary judgment on its exclusive remedy defense, arising from Section 5 of the IL WC Act. Cano also moved to dismiss the claims.

The Kane County state judge granted both motions. Plaintiff appealed.

In their ruling, the Illinois Appellate Court said IPC was entitled to immunity under the exclusive-remedy defense as a borrowing employer.

“An employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing the special service,” the court ruling said. If the worker is injured, the borrowing employer is obligated to pay WC benefits. If the employer does not pay, the lending employer is responsible for payments. As long as the lender or borrower pays benefits, they have immunity from civil liability based on the provisions of Section 5 of the IL Workers’ Compensation Act.

The Appellate Court ruling said the record established IPC had the authority to direct Claimant’s work. She worked the same shift as IPC employees and received instruction and assistance from the company's supervisors and employees. IPC set her schedule and she received safety equipment from the company.  

Though Claimant said only KPC could remove her from her assignment, she acknowledged IPC could dismiss her by requesting KPC, as a staffing company, no longer send her to work at IPC.

“Accordingly, viewing the evidence in the light most favorable to plaintiff, the record demonstrates no genuine issues of material fact with respect to IPC’s direction and control of plaintiff’s work,” the court said. The court ruling also said Claimant’s acceptance of an assignment and awareness she worked for a borrowing employer amounted to implied consent to the borrowed employee relationship.

I checked online and Claimant’s WC claim is pending and active.

We appreciate your thoughts and comments. Please post them on our award-winning blog. To read the court’s decision, click here.

Ronald Eugene Biery   January 3, 1949 – Rest in Peace June 16, 2021

 

Some people just garner a reaction and Ron Biery was one of them. Ron was born January 3, 1949 in Rosebud County, Montana and he was raised by his mother Gladys and stepfather Hugh, however he was also raised by his brothers and sisters. He grew up in Rosebud and spent a lot of time on the farm with his brothers. He left Rosebud for the U.S. Marines after he graduated high school in 1968, and then came home from Vietnam decorated, including a Purple Heart, and honorably discharged.

He became an apprentice butcher in Hardin Montana in 1970, and wed Vicki Yerger in August 1970. Ron and Vicki had three kids, Shawn (named in honor of Hugh), and twins, Ronda and Renae. They owned Camp Custer Service before purchasing Hardin Meat Market in 1976 and eventually owning a grocery store, Shawnalan’s. They moved to Bozeman, Montana in 1985 and after exploring several opportunities, he entered into auto sales and later expanding to include transport.

He spent the last 35 years in business in the Gallatin Valley, watching his kids build their families, even after he and Vicki parted. He went from being the baddest man in Montana to become ”Papa Cupkake” to the last generation who were lucky enough to know him. If he was on your side, there was no greater friend. When you heard the stories, you were sure they cannot be true, but everything you heard was “mostly” true.

He was proceeded in passing by his parents and all of his siblings, save Julia Ann (Judy) Juell.  He is also survived by the mother of his children Vicki Little, his children, Renae (Kevin) Mattimoe, Ronda Thompson, and Shawn (Debbie) Biery, and his current companion Ann Lower.  He is survived by 12 grandchildren and one great grandson, too many nieces and nephews to count, as well as hundreds of honorary children and grandchildren who will all be better off from him being in their world. Graveside services were in Forsyth MT on Saturday June 26, 2021 at 1pm. A celebration of life is being planned tentatively for August 8, 2021 in the Gallatin Valley.

6-21-2021; Why We Send You Draft Contracts before Settlement Submission to the Arbitrator; IL Firefighters Unions Get Expanded/Presumptive MRSA and other conditions and more

Synopsis: Why KCB&A Sends Draft IL WC Settlement Contracts to YOU For Review Before Getting IWCC Approval.

 

Editor’s comment: We had someone question why draft settlement contracts were being forwarded for adjuster and risk management approval before IWCC submission and Arb approval. I have been advised there is a national WC insurer that may be directing their adjusters not to “review” such contracts. With respect, I don’t understand or agree with that approach, to the extent outlined below.

 

Our goal isn’t to have adjusters or risk managers “approve” settlement contracts from a legal perspective—that is what your legal defense team does. But there are important issues that need to be brought up, if relevant, to insure the adjusters, risk managers and legal defense are all on the same page.

 

Please remember when IL WC claims settle and most of them settle, it is not technically possible to “close all rights” without a settlement contract signed by the parties and then approved by the Arbitrator assigned. Please also note it is a challenge, legal and otherwise, to change an IL WC settlement contract after an Arbitrator or Commissioners stamps them as approved.

 

As defense attorneys, KCB&A’s focus in sending IL WC settlement contracts is to be completely certain, at the end of the claim, that all issues are resolved to the claims and risk managers expectations. Anything less may be tragic and/or unfortunate. Please note it is challenging to “blame” the hearing officers if you mess up the settlement terms/issues.

 

First and most important, when sending contracts for claims/risk approval, we want to be sure the math on the settlement matches the adjuster’s  and risk manager’s reserves and authority—they can clearly “approve” the amount they extended and expect to pay. That isn’t legal—it is common sense.

 

Next, we also want to be sure we aren’t missing something of importance, like

 

  • Completely filling out the IL WC settlement contract to insure you have the accurate amount of lost time and TTD paid;

  • Accepting or otherwise “handling” unpaid, disputed or unpresented medical bills—this is intricate and I am happy to fully explain how KCB&A handles this issue;

  • Insuring we cover/pay a child support lien the adjuster or the account is aware of or

  • Recouping a missed IME appointment fee or

  • Innocent overpayment/miscalculation by the adjuster or risk managers that we may or may not seek to recover at settlement.

 

We consider this to be solid, common sense stuff that all defense attorneys should adhere to and all insurance carriers/TPA’s should require. I appreciate your thoughts and assistance and will publish settlement concepts with your permission.

 

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

 

 

Synopsis: IL Firefighters Union Gets Expanded/Presumptive Coverage for Staph and Other Infections.

 

Editor’s comment: Please note IL Firefighters Unions are “hotly” aggressive and want more and more perks for their members. I truly feel this legislative change is unneeded but our legislators almost never turn down a request from these unions. Please note in many villages, towns and municipalities, the number one cost of firefighters is their benefits.

 

As I have told my readers in the past, our IL Firefighters Unions like to paint the picture of firefighters being constantly exposed to smoke from thousands of fires. In fact, most firefighters don’t deal with live fires at all or very infrequently—building codes ‘work’ and our houses and commercial properties are rarely involved in live fires. I recommend your municipality consider going to “Community Service” officers, trained to have police/fire and EMT abilities so they can fulfill and rotate at all three positions and eliminate feather-bedding for do-nothing workers. You can save millions in tax dollars to do so. If you have interest, send a reply.

 

Staph Infection Presumption Measure Heading to Governor Pritzker

 

Illinois lawmakers have passed a bill that would create a rebuttable presumption that Methicillin-resistant Staphylococcus Aureus, also known as MRSA, is compensable for firefighters, emergency medical technicians and paramedics.

The Senate on May 28 voted 52-0 to pass House Bill 3662, sponsored by IL State Rep. Marcus Evans, D-Chicago.

The bill was not amended since the IL State House of Representatives voted 115-0 to pass it April 21 and it has been presented to Gov. J.B. Pritzker who isn’t going to fight with the unions over this bill.

HB 3662 would add staph infections, including MRSA, to a list of other conditions presumed compensable for first responders that include lung or respiratory disease, heart conditions, hypertension, tuberculosis and cancer.

The bill would take effect immediately if signed into law.

Pritzker has 15 days — excluding Sundays — from receiving the bill to sign it, veto it or allow the measure to become law without his signature. Our wildly liberal Governor is expected to sign and make it seem like it was his idea.

The Illinois General Assembly adjourned its 2021 session. The world of Illinois government may again be safe for a time!

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

 

6-2-2021; Illinois GL Claims will now have Prejudgment interest--Learn the Rules; Good News for IL WC Costs--We are in the middle!!! and more

Synopsis: New Law Allows for prejudgment interest in some IL personal injury and wrongful death claims. This is a “must-read” for personal injury/liability adjusters, risk managers and defense attorneys.

 

Editor’s comment: Governor Pritzker signed and thereby enacted this new law that I assure you was quietly sponsored by the Illinois Trial Lawyers. The law might cause multi-million verdicts to be even more painful for insurance carriers, self-insureds and physicians/hospitals defending medical malpractice claims. As I have advised many times, Illinois has overwhelming Democrat majorities in the IL House and Senate, along with our very, very liberal Governor. As Gov. Pritzker is an owner of Hyatt Hotels, one has to wonder how the folks at their legal department feel about the rising claims costs posed by this new law.

 

The new law requires:

 

  • Prejudgment interest will accrue at the rate of 6% from the date the action is filed in personal injury or wrongful death cases.

 

  • This new law does not impact IL WC claims.

 

  • If Claimant’s counsel takes a voluntary dismissal to refile the action within a year, interest is tolled for that time.

 

  • It exempts punitive damages, sanctions, statutory attorney’s fees, and statutory costs;

 

  • The law exempts/does not apply to claims against the State and other governmental entities.

 

  • Experts are unsure whether it might apply to employment discrimination claims—that may have to be litigated and decided in the courts.

 

  • Prejudgment interest is capped at 5 years (you may note there was no cap in previous versions of the bill).

 

Please consider making a reasonable settlement offer in major personal injury and wrongful death claims to avoid prejudgment interest.

 

The way the new law is created, prejudgment interest will be applicable only to the difference between the judgment and the highest rejected offer (within the applicable time frames). Prejudgment interest may not be added if the judgment is equal to or less than the amount of the highest written settlement made by the defendant not accepted or rejected by the plaintiff within 90 days of the offer or rejection.

For any personal injury or wrongful death occurring before July 1, 2021, the prejudgment interest shall begin to accrue on the later of July 1, 2021 or the date the action is filed.

 

The new law is effective July 1, 2021.

 

We do not feel this is going to make Illinois any “friendlier” to businesses looking to start, move or expand here but I caution many States already have prejudgment interest and this interest amount and the way it is being administered seems reasonable to me, particularly if you know the earlier versions of this law.

 

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

 

 

Synopsis: Illinois WC Does Fairly Well in Recent State-by-State WC Cost Rating by AdvisorSmith.

 

Editor’s comment: While looking up other things, I found a state-by-state WC cost listing from this company that appears to be a national business insurance outfit. They indicate their stats are from the Bureau of Labor Statistics and the Oregon Department of Consumer and Business Services. I do feel it has good news for Illinois businesses and the WC community.

 

The highest state is New Jersey with an annual WC cost per employee of $1,415. The lowest is North Dakota at $376.

 

If you take a look at this link https://advisorsmith.com/workers-compensation-insurance/cost/ you will note Illinois WC is right in the middle at No. 24. Our workers’ comp costs per hour are $0.39 and average annual cost per worker are $820.

 

The study notes each state and the District of Columbia run/monitor their own workers’ compensation systems, and rules for which companies are required to have this insurance vary in each state. In many states, all companies with employees are required to carry workers’ compensation insurance, while in other states, only companies that surpass a minimum number of employees are required to have coverage. Texas is the only state in which workers’ compensation insurance is not legally required and employers are allowed to “opt out” of coverage, which may allow the worker to sue for injuries in their courts.

 

The study noes in most states, private insurance companies and self-insured employers provide all or some of the workers’ compensation insurance policies available to businesses and governments. Some states have a mixed system in which the state also runs a workers’ compensation insurance program that can be used to purchase insurance. Finally, a few states have a fully state-run system, in which workers’ compensation insurance is required to be purchased solely from the state.

 

Additionally, other factors that affect the WC premiums paid by businesses and local governments between states are the types of jobs and businesses within the state, the worker safety regulations required by each state, wage rates in the state, and medical costs in each state.

 

Please note my view that Appellate ruling like McAllister v. IWCC are certain to skew our current results and make IL WC more pricey. I also feel the same way about the new trend to have every worker get “loss of trade” of an incalculable and un-reservable amount that is being doled out as “body as a whole.”

 

I have no pecuniary or other interest in AdvisorSmith. I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

Workers' Compensation Workshop: What's Changed for 2021? 

 

 

Wednesday June 16, 2021

9:00 am - 4:00 pm

 

Fairfield Inn & Suites

1111 N. Henrietta St.

Effingham, IL 62401

 

Join Attorneys from Keefe, Campbell, Biery & Associates to learn what has changed for 2021 regarding Workers’ Compensation! The presentation will offer an overview of Illinois Workers’ Compensation where attendees will gain a greater understanding of the IL Workers’ Compensation system of benefits and litigation, learning key terms & terminology. This will include a discussion of issues you may encounter during claims and tips for effective handling and management.

 

The presenters will discuss specific areas including the impact of COVID-19 claims and legalization of cannabis as well as relevant case-law updates.

 

Register Here