8-10-2023; New Law Allows Observer Attendance at WC IME's with Video; Staffing Agency management in our State Just Changed with New Law; Murder at Arby's--Does WC Act Block Negligent Hiring Claim
/Synopsis: New IL Law Allows Observer(s) Attendance at Work Comp IME's with Video.
Editor’s comment: IL SB 1748 was signed by the Governor and is now law. We assume but cannot confirm the driving force behind this change is ITLA or the IL Trial Lawyers Association that is one of the biggest political donor organizations in this State. The new legislation says:
Section 5. The Code of Civil Procedure is amended by changing Sections 2-1003 and 2-1007.1 as follows:
(735 ILCS 5/2-1003) (from Ch. 110, par. 2-1003)
Sec. 2-1003. Discovery and depositions.
(a) Discovery, such as admissions of fact and of genuineness of documents, physical and mental examinations of parties and other persons, the taking of any depositions, and
interrogatories, shall be in accordance with rules.
(b) (Blank).
(c) (Blank).
(d) Whenever the defendant in any litigation in this State has the right to demand a physical or mental examination of the plaintiff pursuant to statute or Supreme Court Rule, relative to the occurrence and extent of injuries or damages for which claim is made, or in connection with the plaintiff's capacity to exercise any right plaintiff has, or would have but for a finding based upon such examination, the plaintiff has the right to have his or her attorney, or such other person as the plaintiff may wish, present at such physical or mental examination. The plaintiff also has the right to designate an additional person to be present and video record the examination. The changes to this Section by this amendatory Act of the 103rd General Assembly apply to actions commenced or pending on or after the effective date of this amendatory Act of the 103rd General Assembly.
We are confident this new legislative language applies to IL WC claims. It is possible IME doctors may increase their charges to deal with three folks being in their examination rooms.
An issue this new law might create is a possible malpractice action against a Claimant lawyer who doesn’t take advantage of the law to have someone present and/or video an IME.
If this practice becomes widespread, it would end the silly assertion, particularly from some Claimant attorneys in southern IL, that an IME doctor only saw the examinee for a couple of minutes. The duration of the IME would be documented in the video.
Please also note the video may show Claimant acting in a fashion contradictory to their claim. I have reviewed WC IME’s where the examinee outlined an injury to the wrong side of their body!
We asked an IME doc who we consider to be extraordinarily knowledgeable about this situation and got this response:
I’ve have IME’s videotaped on occasion, usually in personal injury cases and not WC. I have no issue with being recorded. I do a very typical and straightforward evaluation and I’ve nothing to hide. On occasion, the video captures inconsistencies or shows the patient doing something they has said that they are unable to do. There is almost always a rep from the patient’s lawyer’s office as well, and that is also fine for me. I do set ground rules that any observer has to be completely mute, cannot gesture or make any other actions that might direct the patient’s responses. I tell the rep/observer they get one warning, and if they ‘coach’ a second time I would stop the exam, but that has never been an issue.
My recommendation for everyone who has to deal with any controversy about this new law is to take it to the Arbitrator assigned. Our IL WC Arbitrators are aware of the new law and I am sure they will act in a professional and fair manner to resolve any dispute.
We seek your thoughts and comments. Please do not hesitate to post them on our award-winning blog at keefe-law.com/blog
Synopsis: HB 2862 becomes IL law greatly changing Staffing Agency management in our State.
Editor’s comment: IL House Bill 2862 is now the law in this State and was effective as of July 1, 2023. This bill creates significant changes to the Illinois Day and Temporary Labor Services Act (820 ILCS 175/).
Like most changes to IL law, there was no crying need for any of this and it continues IL anti-business and pro-litigation trend.
Among various changes, here are the major issues all Staffing Co. Managers will need to memorize:
Right of Workers to Refuse Assignments to Third-Party Client Locations Where Labor Disputes Exist
Staffing agencies may not send a worker to a client where there is a pending strike, lockout, or other labor issue without informing the worker, in writing and in a language understood by the worker, of the labor dispute and the worker’s right to refuse the assignment “without prejudice to receiving another assignment.”
Equal Pay for Equal Work
Staffing agency workers assigned to a client for more than ninety calendar days must be paid, by the staffing agency, at least the rate of pay along with equivalent benefits as the lowest-paid directly hired employee of the client performing at the same level of seniority and the same or substantially similar work.
Comparative work includes “substantially similar skill, effort, and responsibility … performed under similar working conditions.”
Requirement of Labor Agencies and Third-Party Clients to Take Steps to Provide Oversight of Worker Safety
Staffing agencies have a statutory responsibility to provide some safety oversight of workers at third-party client worksites. The third-party client also has related safety responsibilities under the amendments.
Illinois Attorney General Can Now Seek Suspension or Revocation of Registration of a Staffing Agency for Violating the Act
It has long been unlawful under the Day and Temporary Labor Services Act for a staffing agency to operate without registering with the State of Illinois. Now, the Illinois attorney general will have the authority to request that a circuit court suspend or revoke the registration of a staffing agency for violating the Day and Temporary Labor Services Act.
Civil Penalties May Be Brought by “Interested Parties”
If an interested party has a reasonable belief that a staffing agency or client violated the Day and Temporary Labor Services Act, the party may bring a civil action in a county where the alleged offenses occurred after exhausting remedies with the Illinois Department of Labor.
Increased Registration Fees and Penalties
The annual fee to register a labor agency with the Illinois Department of Labor has tripled to $3,000 per agency (up from $1,000) and $750 for each branch office (up from $250). A staffing agency or client that violates the Day and Temporary Labor Services Act will be subject to increased penalties.
From a WC perspective, remember both the staffing agency and its client are jointly responsible for work injuries. Primary liability is with the employer at the time of the injury, unless there is a written agreement to the contrary. If you need help with any staffing agency WC issue, send a reply.
We seek your thoughts and comments. Please do not hesitate to post them on our award-winning blog at keefe-law.com/blog
Synopsis: Murder at Arby’s—Does the IL WC Act Block a Negligent Hiring Claim?
Editor’s comment: IL WC Exclusive Remedy Provision Bars Mother's Suit Over Son's Murder by Co-Worker
In Price v. Lunan Roberts Inc., et. als, No. 1-22-0742, issued 08/08/2023, Decedent Price and an individual named Thomas were the only employees working the night shift at an Arby's restaurant in Hickory Hills, IL. Surveillance video showed Thomas clocked in for his shift at 10:04 p.m. About two minutes later, Price was seen on video gesturing toward Thomas. Thomas walked away from where he was preparing food and exited the surveillance camera. When Thomas returned into view of the camera, he was carrying a kitchen knife.
The video depicted Thomas grabbing Price and he stabbed him several times. Decedent Price was able to escape through the back door but died as a result of his injuries, having suffered 27 stab wounds. Thomas fled but was later arrested and charged with murder.
Decedent Price’s mother filed suit against Arby's and Thomas. She alleged Defendants were liable for the negligent hiring, retention and supervision of their employees. Defendants filed a motion to dismiss the case and later filed a motion for summary judgment. They argued they were not liable because the mother’s exclusive remedy was under whatever coverage might be provided in the IL Workers' Compensation Act.
The trial judge granted the motion and an appeal was perfected before the IL WC Appellate Court.
The Appellate Court ruling explained the Workers' Compensation Act generally serves as the exclusive remedy for a person who is injured during the course of employment. However, when the injury results from a personal conflict between employees unrelated to their work, the Workers' Compensation Act may not bar a civil suit. In this case, the mother argued there was evidence that the murder was the result of a purely personal dispute between Price and Thomas. According to their supervisor, Price and Thomas frequently discussed video games during their shift. Price also sometimes gave Thomas rides home from work and gave him a portable video game console.
A forensic examination of Price's phone revealed text messages with an unknown person and appeared to reference drug transactions and indicated the unknown person was involved in similar transactions with Thomas. But the mother also admitted she did not know of any personal disputes between Thomas and her son. During the course of the criminal case against Thomas, no motive was conclusively established for his actions, either.
“The fact that Price and Thomas had some degree of a personal relationship does not mean that the incident was caused by a purely personal dispute,” the Appellate Court said. "Even if there is some evidence of a personal relationship between Price and Thomas outside of work, there is no competent evidence in the record that the attack was motivated by a purely personal dispute."
The Appellate Court affirmed denial.
To read the court’s decision, click here.
We seek your thoughts and comments. Please do not hesitate to post them on our award-winning blog at keefe-law.com/blog