2-4-2024; Shawn Biery's New IL WC Rate Sheet is Out--Max PPD rate is up to $1,024.87 for DOL 7/1/23 and later--check your reserves; John Campbell-Tim O'Gorman Chronicle New IL HR Laws and More

Synopsis: AS WE ARE NOW IN 2024—IL WC BENEFIT RATES STILL SPIRAL UP ENDLESSLY??—SHAWN BIERY’S UPDATED IL WC RATE SHEETS AVAILABLE FOR ACCURATE WC RATES AND RESERVING!!! 

Editor’s comment: The IWCC has posted a new TTD rate of almost $2,000 a week going into 2024 and max PPD RATE is now well over $1,000.

FYI, Illinois WC rates have updated again so please be aware of the New IL WC Rates or your claims handling will suffer and penalties may ensue. Please also note that the IL State Min Wage is now $14 per hour and will rise another dollar on New Year’s Day, 2025. With the already mandated increases the IL WC rates will again increase for sure. You may also note the City of Chicago’s minimum wage is already $15 per hour—this is important in IL WC wage differential claims.

Illinois WC system appears to have the fourth highest max rates in the entire country. If you look online at https://secure.ssa.gov/poms.nsf/lnx/0452150045#c16, you may note our IL WC rates are double or more than our sister States and because of the statutory increases built into the IL WC Act, this anti-business disparity will only increase. It clearly appears our IL WC Rates are going up much faster than inflation.

Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com

As we have mentioned in the past, since the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.

As we indicate above, rising minimum wages will strip value from Illinois’ expensive wage loss differential claims. We feel reserves and settlements need to reflect the legislative boost to anyone who has any job. If you aren’t sure how this works, send a reply to Shawn or Gene Keefe.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $1,024.87. However, this rate is only going to be valid through June 30, 2024 and the new max PPD will be published in January 2025. When it will be published in January 2025, this rate will change retroactively from July 1, 2024 forward. At that time, if you don’t make the change, your reserves will be incorrect--if this isn’t clear, send a reply.

The current TTD weekly maximum has risen to $1,897.92. An IL worker has to make over $2,846.88 per week or $148,037.76 per year to hit the new IL WC maximum TTD rate.

For WC Death Benefits: The new IL WC minimum sped past the $750k floor for surviving widows/widowers. That amount is now 25 years of compensation or $711.72 per week x 52 weeks in a year x 25 years or $925.236!! The new maximum IL WC death benefit is now over $2 million at the max $1,897.92 times 52 weeks times 25 years or a lofty $2,467.30 plus burial benefits of $8K. IL WC death benefits are paid for 1,300 weeks—in contrast, IN WC death benefits are paid for 500 weeks.

IL WC death benefits also come with annual COLA increases which we feel can potentially make Illinois the highest in the U.S. for WC death claims—again if you aren’t sure about this issue, send a reply to Shawn or Gene. It is also possible to settle IL WC death benefits for a discounted lump sum—again, if you have interest, send a reply to Shawn or Gene.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.  If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com  AND you can also send any questions to Shawn at sbiery@keefe-law.com They will get a copy routed to you once we get laminated copies back from the printer—hopefully before they raise the rates again! Please confirm your MAILING ADDRESS to Marissa if you would like laminated copies sent to your home or office!

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

Synopsis: “Our lives, our liberty, and our property are never in greater danger than when Congress is in session.” -Mark Twain. Additional Legal Thoughts, Comments and Opinions by John P. Campbell and Timothy O’Gorman.

Editor’s Comment: As we rapidly enter the second month of 2024, employers need to be sure to keep up with the new Illinois laws impacting businesses throughout the state. Below is a brief summary of new employment laws that IL Human Resource Managers and staff should learn and understand, lest you step into one of the new HR bear traps set by our friends in Springfield.

**Please note** This is NOT a comprehensive list of new laws or intended as legal guidance; we strongly recommend consulting your legal counsel to implement and update your HR policies and handbooks for proper compliance.

1. Illinois Personnel Records Review Act

The Illinois Personnel Records Review Act (IPRRA) has been amended to permit employees to obtain copies of their personnel records more easily. As of January 1st, employers must email or mail a copy of the employee’s records to the employee upon their written request, regardless of whether the employee can show that they are unable to inspect the records in person prior to receiving a copy. Employers can charge copy costs as may be needed. Assuming the old time limits still apply, you have 7 days to send but can ask for a 7 day extension. Either way, this does happen in WC claims and very few folks know of the rapid speed required to timely reply.

1. IL Paid Leave for All Workers Act

Effective January 1, 2024, the Illinois Paid Leave for All Workers Act (PLAWA) compels Illinois employers to provide their covered employees up to 40 hours of paid leave per year, to be used “for any purpose.”

On November 3, 2023, the Illinois Department of Labor (IDOL) proposed regulations interpreting the Act. Where paid leave is accrued, the Act indicates that “all” accrued but unused paid leave must carry over from one 12-month period to the next. Proposed regs state that “employers may establish a reasonable policy . . . restricting employees’ ability to carry over more than 80 hours of unused paid leave.”

1. Cook County Paid Leave Ordinance

Not to be outdone, and in what appears to be an entirely duplicative law, Cook County adopted the Cook County Paid Leave Ordinance as well. This appears to largely mirror the requirements of the Illinois Paid Leave for All Workers Act (PLAWA). The County Ordinance does extend to workers covered by a CBA in logistics (delivery and transport/freight).

The Cook County Commission on Human Rights will enforce this new rule where damages and attorney fees can be assessed.

For those of us within Chi-town city limits, you should note a similar “triplicative(?) ordinance is expected from the City of Chicago sometime later this year.

1. Amendments to the Illinois Day and Temporary Labor Services Act

There are equal pay requirements for daily and temporary workers assigned to a third-party client for over 90 calendar days in any 12-month period. These workers must now be paid at least as much as the lowest paid directly hired comparative employee.

In what appears a common-sense safety requirement, the day and temporary labor service agency and the third-party client must provide safety training specific to the temporary laborer’s job site.

A separate provision may impact what was formerly called “scab” workers crossing a union picket line. Moving forward, before a temporary laborer can be sent to a worksite where a strike is occurring, the service agency must not only advise the temp worker of the dispute, but the temp worker has the right to refuse the assignment without prejudice to receiving another assignment.

1. IL Employee Blood and Organ Donation Leave Act

The updated Employee Blood Donation Leave Act has been amended to include paid time off for organ donors. Employers with 51 or more employees must provide any full-time employee who has been employed for six months or more with paid leave to donate blood or an organ. Employees may use up to an hour to donate blood every 56 days. Additionally, employees are permitted to take up to 10 days of leave in any 12-month period to serve as an organ donor. Please note there are additional provisions for extended time for organ donation up to 30 days, but that is unpaid leave protection.

1. Illinois Freelance Worker Protection Act

The Freelance Worker Protection Act (FWPA), establishes strict protections for freelance workers… basically anyone hired as an independent contractor for only $500 or more! The FWPA sets forth three requirements for hiring or retaining a freelance worker:

(1) The agreement for work must be memorialized in a written contract;

(2) Payment to a freelance worker is required within 30 days following completion of the services or product; and

(3) Companies or contracted entities cannot engage in any discriminatory, retaliatory, or otherwise harassing behavior toward freelance workers.

It is important to note, the Act specifically excludes construction workers, which we reckon would be the most common type of independent contractor.

1. Amendments to the Unemployment Insurance Act Include Independent Contractors!

Now, within 20 days of hiring any new employees or independent contractors, Illinois employers must submit the new hire’s information via the Internal Revenue Service’s Form W-4 or and equivalent form for purposes of tracking unemployment insurance requirements.

Employers will receive a fine of $15 for each individual they fail to report. The Illinois Department of Employment Security will notify the employer of noncompliance, offering a 21-day grace period to submit the information. However, be warned that “Knowingly” submitting a false or incomplete report will warrant a larger fine of up to $500 per person.

One wonders how businesses have time to actually provide goods and services while navigating the new laws each year… a bit like drinking from a fire hydrant! If you find the need for further legal guidance on these or any labor or employment issues, please do not hesitate to contact our office.

Again, this article is intended as a preliminary “FYI” for Illinois employers and we recommend consulting your employment counsel for compliance and implementation of any new employment laws.

Synopsis: IRS Boosts Mileage Rate for 2024

The IRS is raising the standard mileage rate by 1.5 cents per mile for 2024.

The agency announced the business standard reimbursement rate per mile is rising to 67 cents per mile, up from 65.5 cents for 2023, beginning Jan. 1, 2024.

Please note based on IL case law, this rate is used to defray the cost of mileage to IME’s.

We recommend using Google maps to ascertain the mileage from Claimant’s home to the IME docs office and back, multiply by .67 and send the check with the IME notice.

1/7/2024; A Pirate Turns 80--Thoughts on former Alderman Ed Burke; An Unusual Wage Diff Ruling That Ignores an Earlier Ruling Requiring Voc Assessments; New IRS Mileage Rate Posted; Herb Franks RIP

Synopsis: A Pirate Turns 80--Former Alderman Ed Burke’s Political Career and Role as a Municipal WC Manager Comes to an Abrupt End.

Editor’s comment: I admit I stole the idea for the title of this piece from the song by the late and great Jimmy Buffett who recently transitioned to a new and hopefully better place.

What Did Former Alderman Ed Burke Have To Do With Workers’ Comp?

Few observers in the U.S. and Illinois workers’ comp industry know that former Alderman Burke “ran” the City of Chicago’s workers’ comp and police/fire disability programs for decades. In my personal opinion, he did so in an openly corrupt fashion. My favorite example of this was the City of Chicago police candidate who claimed his hands became sore shooting guns in the police academy. He was allowed to get police disability, basically for a lifetime.

You can’t make this up--take a look at https://www.police1.com/police-jobs-and-careers/articles/report-claims-disability-pays-for-chicago-police-pipwIaViYisrA5Cf/

https://www.police1.com/health-fitness/articles/disabled-chicago-cop-cut-off-after-safari-findings-surface-A3gOTz34JxJARwya/

Most municipalities would have suggested this candidate who clearly failed at police training should transition to something he was better suited to do. In Chicago, that common sense approach just doesn’t happen.

In my view, under the aegis of former Alderman Burke this job candidate was provided a lifetime of disability pay and actually put himself through college and law school and was most recently seen as a divorce lawyer and funeral director in the south suburbs. He is probably now on a City pension. To my understanding, he never worked as a police officer for a single day but he had to be paid millions of taxpayer dollars in police disability pay over his work life. To my understanding, lots of folks got this sort of largesse via WC or disability pay while working under former Alderman Burke.

Why would anyone in control of the City of Chicago’s WC and police/fire disability programs provide such largesse to someone who clearly wasn’t cut out for the job? Again, in my opinion, this worker and dozens of others like them would always be beholden to their political patron and would be sure to donate time, money and hard work to every political campaign. The main problem is Chicago taxpayers were getting literally nothing for their tax dollars while former Alderman Burke directed political workers using WC and police/fire disability as a carrot.

Please note when Former Alderman Burke was indicted, numerous City workers being paid TTD for years quit immediately. It is my opinion they did so to avoid being part of the indictments, as they may have been running businesses or working “side jobs” while getting TTD. We will never know.

Former Alderman Burke Wouldn’t Do Very Simple Things to Cut Chicago WC Costs for Taxpayers.

Along with putting workers on lifetime TTD and disability benefits, Former Alderman Burke openly refused

• To return anyone to work at light duty or

• Have his police department or independent surveillance operators check to see what City workers on TTD were doing.

You might know I worked for the City of Chicago for almost a decade and if there is any place that has lots and lots of light duty jobs, it is the City of Chicago. No one working for the City should be on TTD, asserting a lack of light work.

I am sure the City of Chicago has transitioned to outside TPA’s that are handling their WC claims dramatically better, sans political influence. I would bet they are saving Chicago taxpayers millions versus the system run by former Alderman Burke.

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

Synopsis: IL Appellate Court, WC Division Finds Truck Driver Entitled to a Hearing for a Currently Impossible-to-Define Wage-Differential Award for Ankle Injury.

Editor’s comment: What Happened to CDW Corp v. IWCC?? If you want to read that ruling, take a look at https://scholar.google.com/scholar_case?case=8091368495711227221&q=CDW+Corp+v.+IWCC&hl=en&as_sdt=400006&as_vis=1 I vote this CDW Corp. ruling be implemented by the parties and the hearing officers in this current claim. If you aren’t sure how and why, keep reading.

In Walsh v. Illinois Workers’ Compensation Commission, our Illinois Appellate Court, WC Division said a former truck driver whose ankle injury precluded him from continuing in his usual and customary line of work was entitled to an impossible-to-determine wage-differential award rather than permanent partial disability benefits awarded by the IL Workers’ Compensation Commission.

The problem I have with this ruling is simple—in my view, it treats the very recent, well-reasoned and solid IL Appellate Court ruling in CDW Corp v. IWCC as non-existent.

In this claim, Petitioner Walsh was a truck driver for Austin Tyler Construction Co. In October 2014, while exiting his truck, his left foot landed in a pothole, and he injured his ankle.

A magnetic resonance image revealed tearing of the superior peroneal retinaculum, peroneal longus tendon and peroneus brevis tendon. Walsh rejected a recommendation to have surgery and opted for physical therapy.

He did one day of light-duty work in December 2014. He testified it was his opinion the work provided was mostly “pointless paperwork” and suggested the company lay him off, which it did.

He returned to work at the same company for the 2015 construction season but continued to complain of ankle pain. In 2016, he complained his ankle was getting worse with each day of work, and he underwent surgery.

After surgery, he was released to return to work with restrictions in November 2017. His employer provided accommodations in the form of assigning him loads that did not require him to spray the trailer after making deliveries and providing him with a truck with an automatic transmission.

In response, four days later, Walsh’s doctor revised work restrictions to prohibit climbing into a truck or trailer. There was no end date for the restrictions, and Walsh did not return to work as a truck driver.

There is no indication in the record vocational counseling was offered or accepted. You may note in the CDW Corp. v. IWCC ruling I cite above, at that point a “vocational assessment” would be required—that didn’t appear to happen at all.

After a hearing, the Arbitrator awarded temporary total disability benefits from the day of the accident — Oct. 19, 2014 — until Walsh was offered light-duty work on Dec. 2, 2014; and from May 19, 2016, when Walsh had surgery, through June 23, 2017, when he was released to return to restricted work.

The arbitrator also awarded Claimant Walsh permanent partial disability benefits for a 30% loss of use of his left foot. In my opinion, this meant the hearing officer didn’t believe Claimant couldn’t locate alternate light work somewhere. That said, I don’t see evidence presented or mentioned in the record to document available light work.

On review, the Illinois Workers’ Compensation Commission panel affirmed and adopted the arbitrator’s decision except for modifying temporary total disability award dates.

The circuit court was undeterred by the IWCC hearing officers. I write with deference to this honorable Court who I am sure did what he or she felt best with the record presented there. The circuit court somehow summarily determined Claimant Walsh was entitled to a longer period of temporary total disability and a wage-differential award to age 67.The court said Walsh should have received temporary disability benefits through Oct. 31, 2017, when the employer accommodated his work restrictions. The circuit court also ruled Walsh’s increased pain and swelling were evidence that continuing his line of work endangered his health and the accommodation of a truck with an automatic transmission was somehow “insufficient.” Finding Walsh was precluded from his customary line of occupation, the court determined that he was therefore entitled to a wage-differential award, as a matter of law(?)

The court remanded the case to the commission to for the first time, calculate such benefits, and the employer appealed.

Respondent Austin Tyler Construction argued the Commission’s decision that Walsh was entitled to a permanent partial disability award and not a wage-differential award should be afforded deference. Wage-differential awards are available to those who prove an impairment of earning capacity based on actual earnings for a substantial period before and after a work accident. Please note the burden of proof in such claims is on Claimant’s counsel.

On appeal, the Illinois Appellate Court, WC Division ruled the circuit court’s decision was “appropriate.”

They noted Claimant Walsh continued to have swelling four years after the surgery. And while a functional capacity exam or FCE showed that he could do his job if given a truck with an automatic transmission, the appeals court said Walsh’s doctor later imposed more stringent restrictions that prohibited climbing into the truck or its trailer. Please note these two sentences above indicate there is a factual dispute and the Commission’s ruling on factual disputes are supposed to be overturned only when “against the manifest weight of the evidence.” In my opinion and with respect to the members of our Appellate Court, WC Division I feel it is impossible to consider the IWCC ruling was against the manifest weight.

From the bigger picture, the Appellate Court, WC Division ruled the evidence showed Walsh could no longer perform the truck driver job. I would point out you don’t have to be a NASA rocket science to concur in that ruling. My point, as a Commission observer, and again with the highest deference to the members of our Appellate Court, the record before it was the responsibility of Claimant’s counsel. If he or she didn’t provide evidence as to the numbers and evidence to allow a wage differential award to be created, that is their issue and their failing shouldn’t be “corrected” or remanded to be re-heard to allow new evidence to create a simple wage diff calculation.

However, once the Appellate Court found Claimant Walsh was partially incapacitated from his usual and customary line of employment and, in my view, “magically assuming” without any factual basis in the record to find there is a difference between how much he could earn as a truck driver and how much he can earn now, the IL Appellate Court ruled Walsh was entitled to a wage-differential benefit in an unstated amount.

The Court’s members found the IL WC Commission’s award of PPD benefits instead of a wage differential was against the “manifest weight of the evidence,” the Court ruled and remanded the matter to the Commission to somehow recalculate the TTD benefits due and create or divine something that might allow someone to calculate Walsh’s wage-differential award.

If this Court had followed their ruling in CDW Corp v. IWCC that I highlight above, it would have been a simple matter—the requisite vocational assessment would have provided everything needed for the Arbitrator to make a reasonable ruling along with the IWCC panel, circuit court and Appellate Court, WC Division. My recommendation to attorneys for Respondent is similarly simple—come to the next evidentiary hearing with a vocational assessment indicating Claimant can and should be working in a sedentary or light job consistent with his injury, surgery and recovery. Considering locating remote work where he doesn’t have to leave home! In my view, there are hundreds of such jobs in the greater IL labor market right now. My recommendation to all attorneys on both sides of the IL WC matrix—start getting voc assessments in such claims and follow IL case law and common sense. If you, as a claims or risk manager, want a recommendation on a solid voc counselor to create such an assessment—send me a reply.

To read the court’s decision in Walsh v. Illinois Workers’ Compensation Commission, 3-23-0174WC, 12/21/2023, published, click here.

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

Synopsis: The IWCC has lost another of its greats. Herbert Franks, of Marengo Illinois succumbed to illness and recently passed away at the too young age of 89.

He never seemed to age, as he was always traveling and bringing good cheer to all.
 
Herb was a practicing attorney for nearly 60 years, never leaving his hometown of Marengo, where he founded the firm of Franks, Gerkin, Ponitz & Greeley. Herb was an excellent litigator, having won Million-dollar verdicts, but never losing sight of the community that he served.

I always respected and got along with Attorney Franks and I will forever miss him and his great sense of humor. He was a solid advocate for his many clients.

Synopsis: IRS Boosts Mileage Rate for 2024

The IRS is raising the standard mileage rate by 1.5 cents per mile for 2024.

The agency announced the business standard reimbursement rate per mile is rising to 67 cents per mile, up from 65.5 cents for 2023, beginning Jan. 1, 2024.

Please note based on IL case law, this rate is used to defray the cost of mileage to IME’s.

We recommend using Google maps to ascertain the mileage from Claimant’s home to the IME docs office and back, multiply by .67 and send the check with the IME notice.

11-20-2023; Wage Loss Differential Claims are A-Changing in IL WC; Injured Worker Can't Bring Civil Claim Against Borrowing Employer, Happy Thanksgiving to All!

Synopsis: Wage Differential Claims Are A-Changing in Illinois Workers’ Comp.

Editor’s comment: I consider this a “must-read” for IL WC risk managers, claims handlers and attorneys/hearing officers. The information I am doing my best to provide is going to change reserves, lump sums and all handling of one of Illinois’ biggest WC claims—wage loss differential under Section 8(d-1) of the IL WC Act. I am fairly sure we are going to need computers to accurately set reserves.

I don’t believe many of the troops, on both sides of this matrix, are aware of the new battlefield that may be wage loss differential claims, in light of the City of Chicago’s new ever-increasing minimum wage concept. I assure my readers this idea is new to this arena.

Section 8(d-1) of the IL WC Act

This section of the Act provides benefits from the date of loss to the day Claimant reaches age 67 or five years from the date the award becomes final, if the worker is unable to return to the same job at the same rate of pay and returns to work at a lower paying job.

The language is:

(d) 1. If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. 

Please note most jobs in this State are within a range of 50 miles from the City of Chicago—that 50 mile range creates what has been called “the reasonably stable labor market” around such workers’ homes. Folks living in that area are “able to earn” spiraling minimum wage that is now available in Chicago.

So What Changed?

Initially, the City of Chicago’s minimum wage was raised to $15 per hour for workers with jobs with “large” employers. That change did make some difference in calculating wage loss differential.

What I and most IWCC observers may have missed is every July 1 from now on, Chicago’s minimum wage increases on an annual basis per the City of Chicago Minimum Wage Ordinance.

This is new and there has never been anything like it. In the past, once a worker was felt to be able to perform minimum wage work, the minimum wage stayed the same, sometimes for decades. In that environment, it was simple to calculate what a worker would get in an 8(d-1) wage loss award.

Now, with this new change to Illinois’ biggest city’s minimum wage, I feel an Arbitrator hearing the claim, creating an award or approving a settlement has to adjust to the changes that are mandated by Chicago’s new ordinance.

The Chicago minimum wage is tiered for large businesses with 21 or more employees, and small businesses with 4-20 employees. The minimum wage for larger employees increases annually, from now on, according to the Consumer Price Index or 2.5%, whichever is lower, since reaching $15 per hour in 2021. 

As of July 1, 2023, the minimum wage in Chicago rose to $15.80 per hour for employers with 21 or more workers, and $15.00 per hour for employers with 4 to 20 workers.

If you do compound interest calculations, at a minimum, in five years from now, Chicago’s minimum wage is going to be $17.88 an hour—this assumes the CPI or Consumer Price Index is more than 2.5%. In ten years assuming the CPI stays higher than 2.5%, the Chicago minimum wage will be $20.23 per hour. At 20 years from now, the Chicago minimum wage will be $25.89 an hour.

These annual increases are certain to change wage loss differential values in IL WC.

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

Synopsis: Injured Illinois Worker Can't Maintain a Civil Suit against the Borrowing Employer.

Editor’s comment: We strongly support this ruling. In Leman v. Volmut, No. 2019 L 3711, 10/26/2023, published, the Illinois Appellate Court upheld the Circuit Court’s ruling that an injured worker could not pursue a civil claim against his borrowing employer.

Claimant Leman suffered injuries in January 2019 when he was struck by a vehicle while walking. Leman claimed a vehicle being driven by Defendant Volmut failed to stop at a stop sign and struck a vehicle being driven by another driver named Nucci. Her vehicle then struck Leman, a pedestrian.

Leman filed suit against Volmut, Nucci and Volmut’s alleged employers — CPU RX Inc. and Forum Coworking LLC. Nucci answered the complaint and filed a counterclaim against Volmut. He answered the complaint and counterclaim and filed a third-party complaint for contribution against INTREN LLC and Pinto Construction. Nucci and CPU also filed third-party complaints for contribution against INTREN and Pinto.

Leman then amended his complaint to add a negligence action against INTREN, which was engaged in construction activities in the area where the event occurred.

INTREN filed a motion to dismiss the claims against it. The company alleged it was the borrowing employer of Leman and, therefore, immune from common-law liability for his injuries.

A Circuit Court judge denied the motion, finding triable issues as to whether there was an employment relationship between Leman and INTREN. INTREN then filed a motion for summary judgment, again based on its workers’ compensation payments. The Circuit Court initially denied the motion but then granted reconsideration and granted the motion.

The Illinois Appellate Court explained when an employer loans an employee to another employer and the employee suffers injury, both employers have joint liability to the employee under IL workers’ compensation law, and both employers are therefore immune to common-law liability, under Section 5 of the IL WC Act.

Illinois has a two-part inquiry to determine whether a borrowing employer-employee relationship exists. It looks at whether the alleged borrowing employer had the right to direct and control how the employee performed his work and whether there was an express or implied contract of hire between the employee and the alleged borrowing employer.

Plaintiff Leman was a carpenter and a member of Carpenters Union Local 58. He had a years-long relationship with INTREN, but because it was not a signatory to his union’s contract, he could not work directly for it.

He testified that INTREN’s chief executive officer helped him secure employment with Pinto, a signatory to the union’s contract, before INTREN and Pinto entered into a contract to provide carpentry services to INTREN. The contract contained an acknowledgment by Pinto that its employees and agents were not employees of INTREN but were independent contractors.

In the seven years before his injury, Leman worked exclusively for INTREN, though Pinto paid him. He testified that INTREN assigned him work daily, supervised his work and provided safety training.

The court confirmed there was deposition testimony that Leman worked the same hours as INTREN employees, received instruction and direction from INTREN foremen and was assisted in his work by INTREN employees, and none of Pinto’s supervisors were on the INTREN job site on the date of the injury.

The Court’s ruling confirmed:

Based upon the evidentiary material in the record before us as set forth above, we conclude that there is no genuine question of fact on both the issue of whether INTREN had the right to control and direct the manner in which the plaintiff performed his work and the issue of whether, at minimum, there was an implied contract of hire between the plaintiff and INTREN…

To read the court’s decision, click here.

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