2-3-14; Illinois Government--Corrupt, Crazy or Clunky?; Chris St. Peter Analyzes Your Duty to Remove Snow/Ice; Shawn Biery Outlines MSA Thresholds and more

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Synopsis: Is The Current State of Illinois Government Corrupt, Crazy or Clunky? We Ask Our Readers to Decide.

 

Editor’s comment: Here are three completely odd scenarios that we encourage our readers, clients and other observers to consider. We feel they demonstrate why Illinois government is


ü  Corrupt—in short, stuff that appears crooked, questionable or criminal in nature; 

 

ü  Crazy—things that simply don’t make common sense and can’t be made to make sense; or

ü  Clunky—things that sort of make sense but are inefficient, ineffective and should clearly be greatly improved.

 

Scenario No. 1 – Giving $56,345.69 to Claimant and Her Attorney for a Workers’ Comp Claim Where OurAppellate Court Ruled She Isn’t Entitled to WC Benefits.

 

It is hard to write this stuff, folks. In Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120549WC, our Appellate Court, WC Division considered a claim where Petitioner injured herself tying her own shoes. We don’t have any idea how that can be a workers’ comp “accidental injury” as it clearly is a risk common to the public. We don’t even know why an attorney would take such a claim. Petitioner was a home health care worker who was placed at the job by a service but the subject of her work passed during the pendency of the claim and the matter was taken up by the State Treasurer and AG Lisa Madigan’s office on behalf of the Injured Workers Benefits Fund that collects money for claimants injured working for uninsured employers.

 

The Arbitrator found accident for reasons we simply cannot understand. The IWCC affirmed without further comment. The Attorney General’s office filed an appeal to the Circuit and then Appellate Court, WC Division. On January 7, 2013, our penultimate reviewing court reversed the award of benefits and denied the claim. We salute them for adhering to well-established tenets of Illinois WC law. Sort of.

 

What then happens is Petitioner’s attorney files a petition for rehearing. In our experience, Petitions for Rehearing are granted by this panel about once every generation. It may have helped that Petitioner’s counsel is the Treasurer of the Working Forward PAC that legally donates substantial monies to Governor Quinn’s campaign.

 

On rehearing, the main issue appeared to be whether the Illinois State Treasurer needed to file an appeal bond. For reference, the unanimous opinion noted the statute says this about the need for an appeal bond:

 

Section 19(f)(2) provides…“[e]very county, city, town, township, incorporated village, school district, body politic or municipal corporation against whom the Commission shall have rendered an award for the payment of money shall not be required to file a bond.” 820 ILCS 305/19(f)(2) (West 2012).

 

With respect to the august members of this appellate panel, we feel there was lots of room for the Appellate Court, WC Division to rule the State Treasurer is a “body politic” and therefore exempt from filing an appeal bond. To the extent we treat all vendors and creditors poorly in IL government, the State would appear good for the money. We also point out the members of the Court are supposed to evaluate jurisdictional issues on their own—well-settled Illinois case law mandates our Circuit, Appellate or Supreme Courts are supposed to dismiss appeals on a sua sponte (or on their own motion) basis if there is no jurisdiction. We note this claim was pending before the five-member Appellate Court for around two years before they decided they should have had nothing to do with it.

 

What this ruling also points out is our IL legislature, in their infinite wisdom, grabbed/latched onto/snatched about $3.8M from the Insured Workers’ Benefit Fund basically leaving claimants who work for uninsured employers hung out to dry—claimants are only entitled to a pro rata share of benefits due when there isn’t enough money for them in the Fund.

 

So is this ruling:

 

ü  Corrupt?—While we don’t agree with the decision, we cannot view the decision as “corrupt”. We point out the members of this Appellate panel have the highest ethical, moral and legal standards. They are beyond reproach. The IL legislature, on the other hand, should be castigated for “stealing” money from this fund created for injured claimants to provide protection when their employers don’t have WC insurance coverage.

 

ü  Crazy?—We feel this appellate ruling is, for lack of a better word, odd. If Claimant truly isn’t entitled to these monies based on the January 7, 2013 ruling of this panel, it is wildly baffling to see her receive $56,345.69 as a gift from our State fund.

 

ü  Clunky?—On behalf of parties litigant on both sides of the WC matrix, we wish our Illinois state courts in situations such as this would first and foremost insure they have subject matter jurisdiction. For the claim to pend for two years to then find out nothing needed to be done on the merits of the appeal is, again in our respectful view, clunky.

 

Scenario No. 2 — Taking Money from the Poor to Benefit the Rich? Only in Illinois government!

 

As we have advised our readers on numerous occasions, Governor Quinn and state government unions unquestionably have a love-hate relationship. If you aren’t sure the impact of this tortured relationship caused government union workers to boo our Governor off the stage during his speech at the Illinois State Fair. In clear and almost immediate retaliation, Governor Quinn summarily fired an IL WC Arbitrator who was married to one of the state government union leaders involved in this embarrassing debacle. Ouch.

 

However, Governor Quinn repeatedly seeks IL government union support whenever and however he can. We recently heard Crooked Blago and later Governor Quinn penned executive orders relating to payment of Illinois State Medicaid benefits. If you or I were to have to quit our jobs and seek state aid to allow us to care for a seriously ill family member, these executive orders require you to join the union to pay dues or pay matching dues, even if you won’t be a union member.

 

From what we have read, there are about 20,000 Illinois citizens in this situation. The amount they will have to pay if the executive orders aren’t stricken by the United States Supreme Court is about $50 per month—if you do the math, the executive orders will effectively require these indigent Medicaid beneficiaries to kick $1,000,000 every month to the union that is the beneficiary of the orders. So let’s be clear, some of the poorest members of IL society who need state aid to care for their sick family members will now have $50 less each month—we ask you the rhetorical question “Isn’t that stealing from the poor to benefit wealthy union leaders?”

 

So are these executive orders:

 

ü  Corrupt?—From our perspective as government observers, it is hard to call this one. What do you think?

 

ü  Crazy?—Without question, we consider them crazy—should every IL citizen seeking money from our state be forced to join a union or make matching dues payments. Should unemployment compensation beneficiaries? How about the spouses of IL WC total and permanent disability claimants? How about college kids on scholarships? What is the conceivable basis to force Medicaid beneficiaries to give up their benefits and have to pay any portion to a union that does nothing for them?

 

ü  Clunky?—At a minimum, this is another example of clunky, junky, dysfunctional IL government. We are furious to see our Governor using our taxpayer dollars to fight for this silly concept all the way to our highest court.

 

Scenario No. 3 – As you read this, over a five-year period, 2,000 Illinois state government workers were off work with full pay awaiting decisions on their work status. Paid administrative leave for state employees in Illinois is supposed to be an "expeditious" process, according to the Governor's office. The Chicago Tribune reported how nutty the HR situation is by highlighting a state boxing official was paid to stay home for nearly 30 months while investigators examined allegations he used his position to benefit himself and his family. During this time, he received seven salary increases while not even working!

 

His case — highlighted in a Tribune investigation that showed the high cost to the state of such drawn-out cases — appears to be over. The state lost its fight to fire this official who returned to work in December 2013. You don’t have to be Warren Buffett or Donald Trump to figure if the State didn’t need this worker for 2-1/2 years, they probably don’t need that job at all and could eliminate it completely to save taxpayers the dough.

 

However this issue is exponentially bigger and demonstrates what a mess our state government is in. TheTribune reported in October 2012 that more than 2,000 state employees had been put on paid leave in the previous five years, collecting $23 million in wages. Nearly 70 employees spent more than a year on paid leave to the tune of $5 million in wasted taxpayer dollars. If you are doing the math, right now, about 1 in 30 Illinois government employees may be off work on full pay, awaiting resolution of interminable employment disputes. Can there be anything that more clearly demonstrates featherbedding and the fact we have way too many state workers?

 

What we also don’t understand is why/how any number of IL WC Arbitrators were summarily sacked when the IL WC Act supporting them was amended—when and how do the “paid leave” rights arise and why didn’t the Arbitrators get that magic bubble with pay?

 

When one considers there are lots and lots of state government workers’ comp “odd-lot” total and permanent disability claimants who could be returned to work at alternative jobs along with police/firefighters who are paid lifetime line-of-duty disability pensions despite being able to work other jobs along with thousands of state workers on indefinite paid leave, you start to see why things under this administration are

 

ü  Corrupt?—This one isn’t truly corrupt that we can tell but it stinks like it is.

 

ü  Crazy?—We consider these sorts of shenanigans to be impossibly crazy. Our effectively-bankrupt state has to have a better system for handling HR. No private organization and most governments across the U.S. would pay for 1 in 30 workers to remain off duty with full pay indefinitely.

 

ü  Clunky?—See “crazy” above.

 

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

 

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Synopsis: Do Illinois Businesses Have a Duty to Remove Snow and Ice? An overview of premises liability law by KCB&A’s general liability team leader Chris St. Peter, J.D.

Editor’s comment: The snow just keeps falling in the Chicagoland area. Accordingly, we thought it would be a good time to inform our readers of some basic elements of premises liability law, particularly when snow and ice are involved. This analysis focuses on businesses open to the public—that is, businesses that allow customers, contractors, vendors, and others to lawfully enter their premises.

I.              Overview of Illinois Premises Liability Law

As a general matter, slip and fall cases are governed by the Illinois Premises Liability Act. See 740 ILCS 130/1 et seq. (West 2000). Under the Premises Liability Act, the owner or lessee of a premises owes a duty of “reasonable care under the circumstances” to those lawfully on the premises. Simmons v. Am. Drug Stores, Inc., 329 Ill. App. 3d 38, 43 (1st Dist. 2002). In other words, a business must maintain its premises in a reasonably safe condition, or it could face liability for any injuries caused by those conditions.

II.            Snow and Ice Removal

 

A.   Natural-Accumulation Rule

 

Illinois law is generally favorable to businesses when dealing with snow and ice. For example, under what is known as the “natural-accumulation rule,” a business does not have a duty to remove natural accumulations of snow or ice from its property. This rule was adopted by the Illinois Supreme Court in the 1931 case ofGraham v. City of Chicago, 346 Ill. 638 (1931). In Graham, the plaintiff sued the City of Chicago when she slipped and fell on a patch of ice that had formed on a city sidewalk. The Illinois Supreme Court held it would be “unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months.” Id. at 643.

 

The natural-accumulation rule has been expanded over the years to provide broad protections to Illinois businesses, as well as cities and municipalities. For example, even if the snow and ice remain on the property for an “unreasonable” length of time, it has been held that no liability will be imposed as long as the snow and ice is a natural accumulation. See, e.g., Kellerman v. Car City Chevrolet-Nissan, Inc., 306 Ill. App. 3d 285, 288 (1999). Thus, snow that has fallen and collected, sleet or freezing rain that forms ice, or melting snow that re-freezes into ice may remain upon a business’s premises without liability for falls.

 

In addition, Illinois courts have applied the natural-accumulation rule to all types of businesses (e.g., gas stations, hotels, restaurants, shopping malls, etc.), as well as all areas of a business’s property (e.g., on the sidewalk, in the parking lot, inside the store, or on the step of an entranceway).

 

It should be noted that a contract or a lease agreement requiring snow removal can create a duty to remove natural accumulations. See, e.g., Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill. App. 3d 640 (1st Dist. 1980). However, while such a contract may create a duty of snow removal, it does not establish a strict liability standard. In other words, the plaintiff must still prove the business knew or should have known of the dangerous condition and failed to take proper steps to guard against it.

 

B.   Unnatural Accumulation

 

As outlined above, Illinois businesses have no general duty to remove natural accumulations of snow and ice on their property, nor will they face liability for falls resulting from such natural accumulations. However, if there is an "unnatural accumulation" of ice or snow created by the snow removal process—for example, a mound where the ice or snow was pushed—then there may be liability for the fall. Stated differently, in order for a business to be liable for a slip and fall on snow or ice, the business must be shown to have in some way caused an unnatural accumulation of ice or snow, or to have somehow aggravated a natural condition. Further, notice of an unnatural accumulation of snow or ice is required to impose liability upon the landowner or occupier.

 

 

Recovery for falls on icy sidewalks or parking lots can also be based on negligent design or maintenance of the underlying pavement which causes an unnatural accumulation to form. For example, a business can be liable for falls caused by the sloping surface of a parking lot which alters the normal runoff and creates an icy surface.   

 

Of note, Illinois courts have repeatedly held that application of salt by a business, causing ice to melt and refreeze, does not aggravate the natural accumulation already present. See, e.g., Harkins v. System Parking, Inc., 186 Ill. App. 3d 869, 873 (1989).

 

C.   Residential Landowners

 

As an aside, Illinois law holds that residential landowners are only liable for willful and wanton misconduct in the removal of ice or snow. The relevant Illinois statute states:

 

Any owner, lessor, occupant or other person in charge of any residential property . . . who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting in his or her acts or omissions unless the alleged misconduct was willful or wanton.

 

745 ILCS 75/2. This “willful or wanton” standard makes slip and fall cases against residential landowners difficult to prove.

 

III.           Conclusion

 

To summarize, a business that allows the public to lawfully enter its property does not have a duty to remove natural accumulations of snow and ice, but if you voluntarily choose to do so, you better do it right or you could face liability. This means being cautious not to create any “unnatural accumulations” that did not exist prior to the removal process. Of course, the question of what constitutes an “unnatural accumulation” is a difficult one and is often the key inquiry in any resulting litigation.  

This article was researched and written by Chris St. Peter, J.D. and your editor. Please feel free to provide your thoughts and comments to Chris at cstpeter@keefe-law.com.

 

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Synopsis: Losing Your Mind over Medicare Issues related to litigation? A primer by Shawn R. Biery for knowing when to report the claim and when CMS will actually tell you if your MSA is appropriate.

 

Editor’s comment: We remain inundated with questions regarding Medicare issues as settlements are being completed and even now as small mostly medical claims are opened and closed. The rules continue to change and in an effort to keep up with the changes, we again remind you, first and foremost—ALWAYS CONSIDER MEDICARE’S INTERESTS.

 

 

In that regard, you must always consider whether Medicare may be asked to make some payment which could be considered related to your claim.

 

  • If you have a strong end of care statement from a primary treating MD, mention that in the settlement documents as the reason you are not adding value for future medical.
  • If there is no definitive end of care confirmation, identify a value to allow the injured individual to cover potential costs and include that value in your settlement.
  • CMS will only review your proposal if:
    • The settlement exceeds $25,000 and the individual is already eligible for Medicare, or
    • The settlement exceeds $250,000 and the individual has a reasonable expectation to be eligible for Medicare within the next 30 months
      • Reasonable expectation can include being over 62.5 yrs of age, having already applied for SSDI, having end-stage renal failure/

 

Please remember that just because a threshold for review by CMS as noted above is not met—it does NOT mean you don’t have the obligation to consider the “reasonable expectation” of future care payable by Medicare.

 

How you ask will Medicare know if the claim exists?  Section 111 Medicare Secondary Payer (MSP) reporting requirements make you tell them! 

 

They use terms such as TPOC (Total Payment Obligation to Claimant), ORM (Ongoing Responsibility for Medicals) and NGHP (non-group health plan).

 

  • The total payment obligation is defined by CMS as "...the Total Payment Obligation to the Claimant without regard to ongoing medical services," but it is probably easier in many disputed cases to think of it as the final settlement amount regardless of what had been paid up until that point. (THAT DOESN’T HELP MUCH IN DECIDING WHAT TO REPORT, DOES IT?)
  • If you are a workers’ compensation plan, a liability plan, or a self-insurance plan, you are a NGHP.
  • If future medical care is necessary,  there is Ongoing Responsibility for Medicals.

 

When do you need to report the claim for liability claims (not WC)?

 

  • For dates between October 1, 2012 and September 30, 2013, reporting should have taken place if the cumulative TPOC Amount was greater than $5,000.
  • Currently if a claim has a total payment obligation to the claimant (TPOC) over $2,000, you should be reporting that claim. This will continue for dates between October 1, 2013 and September 30, 2014 where you have a cumulative TPOC Amount greater than $2,000.
  • As of October 1, 2014, reporting must take place if the cumulative TPOC Amount is greater than $300 and that threshold is currently set out indefinitely.
  • Responsible Reporting Entities are required to report workers’ compensation ORM which exists on or through January 1, 2010, regardless of the date of an initial acceptance of payment responsibility. The interim thresholds do not apply to workers’ compensation ORM. However, certain workers’ compensation ORM claims are excluded from reporting if they meet ALL of the following criteria:

 

  • the claim is for “medicals only”;
  • the associated “lost time” for the worker is no more than the number of days permitted by the applicable workers' compensation law for a “medicals only” claim (or 7 calendar days if the applicable law has no such limit);
  • all payments have been made directly to the medical provider;
  • and the total payment for medicals does not exceed $750.

 

Please note—once a workers’ compensation ORM claim is excluded from reporting, it does not need to be reported unless the circumstances change such that it no longer meets the interim exclusion criteria listed. (Basically the claim does not need to be reported unless something other than medicals is included, there is more lost time, a payment is made to someone other than a provider, and/or payments for medicals exceed $750).

 

The best way to make sense of all of this is to err on the side of caution and report the claim if you are unsure and as noted above ALWAYS CONSIDER MEDICARE’S INTERESTS and make sure you confirm in any settlement documents how you protected their interests. This article was researched and written by Shawn R. Biery J.D., MSCC and he can be reached at 312-756-3701 or sbiery@keefe-law.com. Both Shawn and Matt Ignoffo J.D., MSCC at mignoffo@keefe-law.com  are certified MSA consultants in our office who are prepared to field any questions you may have.