3-25-2024; Successful Appellate Outcome for Atty Vanderford and KCBA!; Birth Defect Litigation Against Employers is Not Blocked by WC Exclusive Remedy and more

Synopsis: Successful Appellate Outcome for Defense Attorney Lindsay Vanderford and KCB&A! Court Rejects Petitioner’s Challenge to Appointment of Arbitrator and Ruling on His WC Claim.

Editor’s Comment: Please note this ruling isn’t “final” and might be subject to rehearing or a Petition for Certiorari to the Illinois Supreme Court. That said, we do feel the litigation will end.

In Osman v. IWCC, No. 2-23-0180WC, issued 03/18/2024, the Illinois Appellate Court, WC Division rejected the worker’s challenges to the appointment of the Arbitrator in his case and upheld a determination the worker failed to prove causation between a subsequent condition and a work-related accident.

Claimant Osman worked for a west suburban school district. The record indicates his foot was caught between a wall and two pallets while at work in December 2012 and he fell. He asserted injury to his right ankle.

Osman claimed he had no issues of instability with his right ankle or any problems with his knees and hips before the alleged accident. After walking with an altered gait because of his injured ankle, Osman alleged that he developed pain in both knees.

Claimant Osman was off all work for about 26 weeks, then returned to full duty.

A couple of years later, in January 2015, Osman saw Dr. Burgess, a podiatric surgeon who felt Claimant Osman had an altered gait, which Dr. Burgess felt "would causally relate the knee and hip to the accident." The problem with causal relation, in my view, is the several-year-gap from the DOL to the onset of knee/hip issues.

After a full hearing, the Arbitrator also found Osman had reached maximum medical improvement or MMI in May 2014 and he failed to prove the late-arising conditions of his knees and hips were related to his 2012 accident.

The Arbitrator also noted Osman had successfully returned to full-duty employment at the School District and had no loss of earnings. Nonetheless, the Arbitrator acknowledged Osman still had lasting complaints and wore a brace. The Arbitrator therefore awarded permanent partial disability for a 25% loss of use of the right foot. Benefits were not awarded for the leg(s).

The Illinois Workers’ Compensation Commission panel affirmed, as did a Circuit Court judge.

The Illinois Appellate Court, WC Division rejected Claimant’s argument the Arbitrator’s appointment as a state hearing officer was invalid.

“[A]lthough labyrinthine, the appointment procedures were in order and comported with what is required by the law,” the IL Appellate Court found.

The Court also found the Arbitrator had not remained in the same county beyond the period allowed by WC law. Illinois law forbids an assignment to the same county for more than two years in each three-year term, the Court found, and the Arbitrator who heard this case had served for one year of one term and 22 months in another.

The Court went on to find the IL WC Commission’s decision was not contrary to the manifest weight of the evidence.

To read the court’s decision click here.

Synopsis: Need Starter/Intermediate or Expert-level Workers’ Comp Training for your claims/risk/safety/management staff?

Editor’s comment: The defense team at KCB&A regularly provides state-of-the-art training for companies like yours. We closely watch and report on any and every change to the law and practice. With the advent of Zoom, this can be scheduled and provided easily. We can tackle your team’s toughest questions and help you make sense of a system that is challenging to understand and implement.

If you have interest in WC training, please reach out to John Campbell at jcampbell@keefe-law.com or Shawn Biery at sbiery@keefe-law.com. Or just reply to this email.

Synopsis: Children May Proceed With Tort Suit Against Parents' Employer for Texas (?) Workplace Exposure(s) Arguably Resulting in Birth Defects.

Editor’s comment: This ruling is something of an exception to the concept of “exclusive remedy” in workers’ comp. What is odd is the children cannot file suit, as they are minors and don’t have standing to sue, so the parents/workers have to sue their employer for them. It is also truly odd to see alleged exposures in Texas being brought in Illinois by the zillionaire Plaintiff lawyers here. Please note these brain defects claims have multi-million exposure for U.S. employers and we will probably see lots more of them. Please also note they are civil claims and, unless the IL Supreme Court overrules the Appellate Court, they will not be decided in the various WC admin bodies across our country.

In Fernandez v. Motorola Solutions Inc., Nos. 1-22-0884 and 1-22-0892, issued 02/29/2024, the Illinois Appellate Court ruled summary judgment was not appropriate in deciding if birth defects in children are the result of their parents' workplace exposure to chemicals.

Infants/claimants Meg Fernandez and Jonathan Johnson were born with severe birth defects. They brought separate actions in an Illinois state court against Motorola Solutions Inc., alleging their fathers were exposed to toxic chemicals and gas at a semiconductor manufacturing facility in Texas.

The Illinois Circuit Court granted summary judgment for Motorola, finding it did not owe the infant plaintiffs a duty under Texas law.

The Illinois Appellate Court said Texas law applied to the plaintiffs’ claims. The Court ruled any legal duty in Texas depends in part on whether the injury to the plaintiff was foreseeable, the court continued. A finding of foreseeability requires

“(1) that the injury be of such a general character as reasonably might have been anticipated and

(2) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated reasonably might have been foreseen.”

The intermediary Appellate Court noted scientific evidence was conflicting as to whether paternal exposure to toxic chemicals during the manufacturing of semiconductors causes future offspring to be born with birth defects. Thus, the Court found the evidence raises a question of material fact as to whether plaintiffs’ birth defects were the reasonably foreseeable consequence of Motorola's alleged civil negligence.

“This question of material fact cannot be determined as a matter of law but must be resolved by the trier of fact in order to determine whether a duty existed,” the Appellate Court ruled.

Motorola moved to block, asserting the exclusive remedy provision of the Texas Workers’ Compensation Act supported summary judgment in the company's favor.

The Illinois Appellate Court found while the Texas WC Act generally bars civil suits for workplace injuries by the injured worker and his heirs, the court said derivative claims under the Texas workers' compensation statute "are those where the plaintiff was not physically injured [them]self but suffered emotional or economic harm due to the physical injury to the employee, e.g., claims for loss of consortium or wrongful death.”

Since the cases involve infant plaintiffs seeking recovery for their own injuries, separate and apart from any workplace injuries/exposures to their fathers, the exclusive remedy doctrine does not apply, the Appellate Court found.

To read the court’s decision, click here.