Synopsis: Employee’s Retaliatory Discharge Action Dismissed As There Was No Evidence Manager Knew of Plaintiff’s WC Claim; $1.6 million Verdict For Plaintiff Reversed--Before We Start to Worry About Plaintiff, Note He is a Well-Paid GPP or Ghost Pension Payroller.

Editor’s comment: A former City of Chicago employee’s Illinois Workers’ Compensation Act retaliatory-discharge claim failed as a matter of law because there was no evidence the official who made the decision to terminate Plaintiff (and many others) had any knowledge Plaintiff filed a workers’ compensation claim. Instead, the evidence tended to show the decision to terminate Plaintiff was part of a reduction in force or RIF that affected some 300–400 city jobs. Evidence indicated Plaintiff had not been singled out; everyone who held his job position was similarly laid off. Because an employee lacked evidence the decision-maker who included him in a budget-crisis-based reduction in force knew of his workers’ comp claim and he likewise failed to link his termination to his disability, neither his workers’ compensation retaliation claim nor his ADA claim should have gone to trial, ruled the federal Seventh Circuit Court of Appeals ruled, reversing in part a split judgment in this almost never-ending case.

There was a 1995 accommodation agreement--the employee began working for the Chicago Park District in 1973, later becoming a City sanitation truck driver. Plaintiff Hillman claimed he developed cervical radiculopathy—we do not see an “accident” or “injury” described in the record. This appears to be a “repetitive working” claim that is just about indefensible. In 1995, Plaintiff Hillman entered into an ADA reasonable accommodation agreement with the City that allowed him to avoid “repetitive work” with his injured arm. He was reassigned to be chief timekeeper, and though he never performed all duties required by the job description, he performed the essential functions. In May 2000, the employee was put under a new supervisor, who assigned additional duties arguably requiring “repetitive use” of his arm, allegedly exacerbating his asserted delicate condition. In July of that year, for the first time in his career, the employee did not receive a merit raise—one might think “merit” would mean one earned the raise. Either way, Plaintiff informed his new supervisor he could not physically perform the additional “repetitive” duties. In response, the supervisor assigned him to supervising timekeeper duties which probably meant there wasn’t much work to do.

Aren’t All Jobs “Repetitive?”; Isn’t Repetition the Nature of Work?

Thereafter, the employee’s attorney wrote to the City manager asking the 1995 accommodation agreement be magically honored. In response, the personnel liaison wrote a new job description for Plaintiff. The first paragraph covered duties he had done as chief timekeeper; the second covered the reassigned duties of a supervising timekeeper. It also anticipated use of a new computerized payroll system that might render all of it otiose. The second paragraph supposedly included supposedly “repetitive tasks” the employee somehow claimed he could not physically perform. In August 2000, the liaison told him to report for a fitness-for-duty exam to reassess his asserted accommodation. Around that time, his physician noted his condition had somehow worsened while doing almost nothing at work. Later, the employee was transferred to the Construction Division where he answered phones. We assume this might mean he had to repetitively push buttons on the phones and he might have to put the phone to his ear and talk. That same day, he filed an IL workers’ comp claim. On October 1, he was again denied a merit raise. A week later, he was transferred to the Transportation Division where he again answered phones. He continued to see medical professionals in connection with his workers’ comp claim and, on December 1, he received a letter from the City advising “the most viable option for you is to apply for a Leave of Absence and to return to work when your physical condition allows you to perform the duties of your job title.” In February 2001, a doctor cleared him to perform sedentary work, but the department’s Assistant Commissioner wrote “Cannot accommodate with restriction” on the discharge sheet. He noted the employee could be accommodated in the Bureau of Traffic Services.

Cleared to work, the employee reported to Traffic Services and was given a temporary assignment involving routine duties, though his title was still chief timekeeper. Thereafter, he had a pattern of tardiness and absenteeism due to sick leave. He was again denied merit raises in 2002. When the City faced a serious budget shortfall and department heads had to identify positions to include in a RIF, the employee and his position was selected. Both the chief timekeeper and supervising timekeeper positions were included because no one was performing them and the Department’s transition to the new computerized payroll system rendered them obsolete. Final approval of the RIF was by an individual who did not know the employee had filed a workers’ comp claim.

In 2004, the employee filed a legal action claiming the City violated his rights under the First Amendment, the ADA, and state law. The judge allowed two claims to go to trial—discharge in retaliation for filing a workers’ compensation claim and an ADA claim alleging he was denied raises and terminated for requesting an accommodation. The jury returned a verdict for the City on the workers’ comp retaliation claim and the judge died before considering the ADA claim. A new judge granted a new trial. This time the jury returned a split verdict, awarding $2 million to the employee for workers’ comp retaliation and issuing an advisory verdict in favor of the City on the ADA claim. After post-trial motions, the court denied the City’s motion for judgment as a matter of law on the workers’ comp retaliation claim, though it did reduce damages to $1.6 million. It denied the employee’s motion for judgment on the ADA claim. Both parties appealed.

Reversing in part, the federal appeals court found the undisputed evidence showed the workers’ comp retaliation claim should not have reached a jury. To prevail, the employee had to show his workers’ comp claim was the “but-for” reason for his termination. That requires, at a minimum, the decision-maker knew he intended to file or had filed, a workers’ compensation claim, but here there was no such evidence at all.

Rejecting the employee’s cross-appeals as to his ADA claim, the federal court found no reason to disturb the findings of fact after the bench trial because the employee failed to prove his request for an accommodation was the “but-for” cause of the merit-pay increase denials and his inclusion in the RIF. In the federal appellate court’s view, the lower court’s findings were well supported by the record, including the lack of raises followed excessive tardiness and absenteeism, and the RIF was necessitated by a budget shortfall.

This Ruling Cuts in Numerous Directions

First, please note the City was sued in civil court for the retaliatory discharge/ADA dispute—at the same time, the WC claim was filed for the same damages. Magically, they don’t offset for reasons we completely disagree with. There is no possible way Claimant could be seeking “damages” for loss of earnings but not have those “damages” be offset by a T&P WC award that is clearly worth millions and millions of dollars to him. Whatever device was used by the civil courts to allow what would be double-compensation should be reviewed, reconsidered and vacated.

Second, for HR managers, if you are setting up a RIF, you need to find some way to get rid of or RIF your “challenged” workers while not knowing if they have pending WC claims. We are happy to assist in this process—just send a reply.

Third, please don’t pay or blindly accept “repetitive working” claims. The defense team at KCB&A knows how to fight and win such claims—please contact us for your best defense strategies.

Fourth, as we indicate above, Plaintiff Hillman is a GPP or Ghost Pension Payroller. In December 2007, the Commission panel headed by former IL WC Commissioner DeMunno affirmed an award of total and permanent disability benefits of $716.86 a week on a tax-free basis for life. By now from year 2000 to present, Plaintiff has already received about $600,000! That award also provides for RAF benefits that will double the weekly award every 23 years or so. Therefore, if Claimant lives to 2023, he will be getting about $1,500 a week or $75,000 on a tax-free basis each year for both T&P and RAF benefits. If he can make it another 23 years, he will be getting about $150,000 each year from Chicago taxpayers and the businesses/governments that pay into the RAF. Claimant Hillman got his wish to go on the dole and get paid handsomely to do nothing. Is there anyone so disabled in one arm, they can’t answer the phone wearing a headset?

Fifth and finally, I salute the federal appellate court for getting this one right. I point out it is decisions like this one that are causing property and other taxes/fees to skyrocket in Chicago. We need to stop creating GPP’s or Ghost Pension Payrollers that are gipping our taxpayers. It is also causing the entire workers’ comp system in this state to needlessly come under a microscope. As we outline above, we don’t see a work accident and we don’t see a work injury. We consider it impossible to consider Plaintiff Hillman couldn’t answer phones and work at sedentary work. I feel the reason he isn’t working right now and earning his pay was his personal decision to quit a sedentary position and sue, sue, sue. If the Arbitrator and WC Commission in 2007 hadn’t rewarded this unusual and unsupported behavior, we feel Plaintiff Hillman would probably have stopped the shenanigans and gone back to work.

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

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Synopsis: Epi-Pen Cost Skyrockets—Should HR/Risk Managers Still Have Them On the Job?

Editor’s comment: Epinephrine injection is used to treat life-threatening allergic reactions caused by insect bites, latex and other causes. Symptoms of allergic reaction include wheezing, shortness of breath, low blood pressure, hives, itching, swelling, stomach cramps, diarrhea, and loss of bladder control. Epinephrine is in a class of medications called sympathomimetic agents. It works by relaxing the muscles in the airways and tightening the blood vessels.

In its latest move to quell outrage over its price increases, the maker of the Epi-Pen has resorted to an unusual tactic — introducing a generic version of its own product. The company, Mylan, said the generic Epi-Pen would be identical to the existing product, which is used to treat severe allergic reactions. But it will have a wholesale list price of $300 for a pack of two, half the price of the brand-name Epi-Pen. The raging debate over Epi-Pen pricing has offered a surprisingly wide window into the complicated world of prescription drug pricing, in which powerful drug companies, pharmacy benefit managers, insurers and federal health programs all play major roles. However, the system remains questionable and quirky.

Can a Bee/Wasp Sting Be A Compensable Workplace Exposure?

For the most part, bee/wasp stings are random and rare. In those settings, it is hard for a hearing officer to relate the attack to the workplace. However, if an employee is subjected to high level of exposures to bees/wasps than the regular public, compensation may lie.

Therefore for workers who have allergies and sensitivities of all kinds, having an Epi-Pen at a work site is a must. Employees who, as part of their daily work activities, are exposed to bee/wasp venom or other workplace hazards that may result in an allergic reaction could potentially be at risk and may need an epinephrine pen or Epi-Pen.

Your employees who have workplace hazards that may result in an allergic reaction should indicate they are at risk when around some animals, bees and wasps. Employees who are known to have a systemic allergic reaction to the venom should carry, or have available at a moment’s notice, an epinephrine dispensing pen. To acquire an Epi-Pen for workplace use, the employee must obtain a prescription from your OccDoc or their personal physician. Most occmedicine staff will train and document with an outline of the training, date and participants. If you have occhealth selected for your workers, have them contact your Occupational Medicine group to schedule an appointment. Once an exam and training have been completed, the Epi-Pen may be acquired at a local pharmacy.

Emergency Use

Epi-Pens should be readily available in areas associated with apiaries/wasps for emergency use by workers, grounds keepers, etc. who may be exposed to or near the bees/wasps. Epi-Pens should be placed in your First Aid Kits and administered by First Responders (CPR, AED and First Aid) who have been trained to use them.

Epi-Pen users must observe the expiration date of the individual pens and replace accordingly. Expired Epi-Pens should be considered hazardous waste and must be returned to the pharmacy where they were purchased for proper disposal.

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

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Bedford Park – Clearing Industrial Association

5101 West 67th Street ● Bedford Park, Illinois 60638 ● 708-496-0336 ● Fax 708-458-8885

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QUARTERLY MEETING

Workers’ Compensation 101-102 For BPCIA

Speakers: Gene Keefe & John Campbell

September 20th

Mid-level presentation for managers and executives about dealing with workers’ comp claims including accident investigation, compensability, claim management, legislative and legal developments. Expect an interactive discussion of workers’ comp issues that will be entertaining and informative. Veteran WC trial lawyers Gene Keefe and John Campbell are also adjunct professors of law at The John Marshall Law School and can review strategies to avoid work injury claims, early intervention and how to maximize strong outcomes when an unfortunate injury occurs at your workplace. They will also discuss how workers’ comp interacts with other state and federal benefit programs like FMLA, ADA, Older Workers’ Benefit Protection, Unemployment and OSHA.

DATE: September 20, 2016 (Tuesday)

COST: $25.00 per person includes lunch (Non-members $35)

PLACE: Marriott Chicago Midway

6520 S. Cicero Avenue

TIME: 11:30 A.M. Registration / 12:00 NOON Luncheon

For Reservations call 708-496-0336 or Email donna@bpcia.org

KCBA Blog

8-29-2016; $1.6 Million Retaliatory Discharge Verdict Vacated But GPP Rewarded by IWCC; Epi-Pen Controversy--Do Risk Managers Still Need Them?; BPCIA Hosts WC Teaching Lunch with Keefe/Campbell