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.