5-27-2019; Now What Do We Do With SB 1596--Are Latent Injuries Truly in the Mix?; Brad Smith, J.D. on Your Legal Liability for Open and Obvious Conditions; Happy Memorial Day to All and More

Synopsis: OK, IL WC Bar—Now What Do We Do With SB 1596?? Are “Latent Injuries” Truly In The Mix?

Editor’s comment: As I reported a week ago, ITLA got its wish and obtained the enactment of SB 1596 that is nutty, confusing and perplexing legislation which, for the first time, allows IL workers to sue their employers in Circuit Court for negligently causing whatever the heck “latent injuries” might be. As you will read, I don’t agree the term “latent injuries” should actually be used but seek my readers and industry comment about that irritating and somewhat “crazy-making” term.

The pertinent part is in the IL WC Act now. This new law states:

Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such injury or death, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the nonwaivable right to bring such an action against any employer or employers.

If you read the law, there are two issues of enormous importance. First we are left to figure out what a “Statute of Repose” might be in the IL WC Act because those injuries/deaths are now the subject of civil litigation because Sections 5 and 11 may no longer apply to them. I do know Section 5 is the “exclusive remedy” limit on any injury/death occurring at work. So, if you have a “statute of repose” that covers an injury/death, the worker can either bring either a WC claim, a civil claim or both!

What is a Statute of Repose?

A statute of repose is basically a cut-off date whether a law suit is filed or not. Such legislation is hated by Claimant attorneys because it can cut off a Plaintiff’s right to recovery if they had something building inside them that doesn’t come out for months, years or decades.

Section 6 of the IL WC Act has a single statute of repose that says (in pertinent part):

In any case of injury caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 25 years after the last day that the employee was employed in an environment of hazardous radiological activity or asbestos, the right to file such application shall be barred.

If an accidental injury caused by exposure to radiological material or equipment or asbestos results in death within 25 years after the last day that the employee was so exposed application for compensation for death may be filed with the Commission within 3 years after the date of death, where no compensation has been paid, or within 2 years after the date of the last payment of compensation where any has been paid, whichever shall be later, but not thereafter.

After lots and lots of research, this seems fairly clear to me—these is a limitation of 25 years on claims of exposure to radiological activity or asbestos. Ergo, claims involving radiological and asbestos exposures are now the subject of SB 1596 and can potentially cause the right to civil litigation. I have seen mention of “beryllium” as being part of this new legislative concept. You may note beryllium doesn’t appear at all in the IL WC Act. It is a rare mineral that may or may not be radioactive. I assume you and all my readers don’t need to concern yourselves with non-radioactive beryllium but, I feel if you have people working with radioactive beryllium (or any other radioactive substance), the new law may apply to them.

Where/How Did “Latent Injuries” Come Into the Mix?

Again, I have done exhaustive research. I don’t know and would ask you and/or anyone you know why legal, insurance and other risk managers are now mentioning and voicing concerns about “latent injuries.” There is no statute of repose in the IL WC Act for “latent injuries,” just exposure to radiological materials and asbestos—the IL WC Act is very clear about it. If I am wrong about this—please, please tell me why! I will admit any mistake on my part to my many readers but I clearly think I am right—latent injuries is a very broad term that shouldn’t be used in the context of SB 1596.

In at least one source, the PR folks at ITLA are telling everyone who will listen that “latent injuries” are defined as medical conditions resulting from workplace exposures to things like asbestos and beryllium. At least one industry publication from a national insurance brokerage indicated “latent injuries” include, and I quote (by cutting and pasting):

lead poisoning, black lung (pneumoconiosis), mesothelioma and asbestosis, silicosis, skin cancer, lung cancer, occupational asthma, byssinosis, carpal tunnel syndrome, repetitive strain injuries, hearing loss, and traumatic brain injury.

First, I have no idea how all those claims might fall under SB 1596 that appears limited to radiological materials and asbestos, per the terms (new and old) of the IL WC Act. Second, if that quote is accurate, thousands of pending and potential IL workers’ comp claims could possibly be brought by wealthy Plaintiff lawyers in Circuit Court under the aegis of this new law and the IL WC Commission may be suddenly otiose and might be unworthy of continued funding at some point.

At least one other industry publication said this new legislation “expands the coverage of the Workers’ Compensation Act.” I want to make clear my view that statement is simply and unequivocally wrong—SB 1596 does nothing, no change at all, to the implementation of the IL WC Act. SB 1596 creates a new civil action unfettered by the “exclusive remedy” concept but has little to do with the other terms and benefits of the IL WC Act.

What Does a Humble WC Lawyer Do When Faced With An IL WC Claim That Might Involve Exposure to Asbestos or Radiological Materials?

From the perspective of the Plaintiff/Petitioner lawyer handling an IL WC claim that might involve the exposures above—I am fairly sure they would need to at least let your clients consider the possibility of either a simple WC claim or a much more complex and expensive civil claim—if you don’t have that capability, refer them to someone who does and keep a record of your referral. You may want to insure your client knows of the risks/rewards.

From the perspective of Defense lawyers across the State, you have to tell your clients precisely what happened in this nutty State. If you are contacted by and/or receive defense of a claim for either radiological or asbestos exposure (or both), you need to let them know there is a non-waivable right for the worker to bring both a WC claim and/or a civil claim. The WC claim would/should be covered by the WC coverage. An employer should not be able to block the civil claim by having WC benefits offered and accepted by the injured worker or his family—that is what I feel “non-waivable” means. I don’t feel “non-waivable” means you can’t settle the claim with a release in exchange for payment.

To settle, the employer should have to get both approved WC settlement contracts and a general release of the civil claim. I hope.

I would appreciate anyone’s thoughts and comments on this article. Please feel free to post them on our award winning blog.

Synopsis: The Federal Seventh Circuit Appellate Court Rejects Premises Liability Claim for Open and Obvious Condition Against Menards.  Analysis by KCB&A’s top GL ace, Bradley J. Smith, J.D.

Editor's Comment: In McCarty v. Menards, Inc., a business invitee sued Menards for tripping over a product display sign. During the proceedings in the federal District Court, the federal judge entered summary judgment for Menards and threw out the lawsuit. Then the Seventh Circuit Court of Appeals in an opinion written by Justice St. Eve affirmed that dismissal. She held that the sign was open and obvious and that the business invitee should have seen and appreciated it.

On February 13, 2017, the business invitee (accompanied by a colleague) went to the Menard’s store in Antioch, Illinois, to purchase materials for his company. He was purchasing sheets of plywood. The display sign at issue was knee high with protruding wooden legs.

The business invitee was looking around the Menards store for boards for a period of time. Then he moved a few boards from a middle stack. When he did that, he tripped over a piece of wood that was part of the display sign in front of the right-hand pile. The photograph submitted to the Appellate Court demonstrated a display sign protruding out a significant distance from the stacks of wood. It was a relatively large and certainly a noticeable sign.

In Illinois, landowners owe business invitees a duty of care to keep their premises reasonably safe. Illinois courts generally consider four factors when deciding if duty of care exits:

(1) the reasonable foreseeability of the harm;

(2) the likelihood of the injury;

(3) the magnitude of the burden of guarding against the injury; and

(4) the consequences of placing that burden on the premise’s owner.

The “open and obvious doctrine” implicates the first two factors of the duty of care analysis on this retailer.

When the open and obvious doctrine applies because the condition is open and obvious, the risk of harm is considered slight. Essentially, people are expected to appreciate and avoid open and obvious conditions.

Federal Judge St. Eve concluded in her opinion that:

“A reasonable person in [the business invitee’s] position, who saw that there were signs, chose the stack he wanted by looking at the signs, walked right up to the signs, was working within a few feet of the protruding sign, and either repeatedly stepped over it or turned toward it, would have notices the large sign and legs as a tripping hazard.”

Since there were no material disputes concerning the condition’s physical nature, then the trial court and subsequently the appellate court were able to find the condition an open and obvious one as a matter of law.

This opinion is a valuable interpretation of premises law for retail and restaurant business owners. It applies the duty analysis in a reasonable and fair manner. This allows businesses to have some predictability as to what they are responsible for. Sometimes people do need to observe their surroundings and use common sense to avoid open and obvious conditions. It is not always someone else’s fault.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com.

5-20-2019; Illinois’ Legal System Continues to Get More Judicial “Hell-Hole-y"; The Defense Team at KCB&A Welcome Chicago’s Amazing New Mayor Lori Lightfoot and more

Synopsis: Illinois’ Legal System Continues to Get More Judicial “Hell-Hole-y.”

Editor’s comment: The American Tort Reform Association puts out a Rotten Tomatoes-type ranking of U.S. litigation systems they call Judicial “Hell-Holes.” Their goal is to let you, me and your friends know what things in our courts start to smell of limburger cheese. In my view, what just happened to our State stinks to high heaven. Now we have to wait and see what our wacky Illinois courts do with this new and shocking concept. Please also remember the terms in this legislation like “latent injury” and “statutes of repose” aren’t truly defined other than in the minds of the Plaintiff bar—in my view, if the judiciary blindly accepts this legislation, without requiring clarity, they are going a very long way toward appearing to me to be the minions of their campaign benefactors.

As a caveat to my readers, I strongly recommend you contact your insurance brokers and ask what to do about insurance coverage for this new and unprecedented risk. All U.S. General Liability Insurance policies have a standard exclusion for claims by an employee, and all Work Comp insurance policies have a standard exclusion for civil claims against the employer—because civil claims were very limited in our State until this new law was enacted. In my view, and in the view of many commentators, current IL business insurance coverage leaves these sorts of claims in a Never-Land. The reason for my Never-Land comment is this shocking new exposure didn’t exist in this goofy State until last Friday! Don’t be caught in the lurch whatever you do.

I also have an article by an excellent legal scholar who feels this mess is going to either be declared unconstitutional or be allowed to exist but the concept won’t start for 25 more years—if you want that article, send me a reply. Either way, please assume the fun people at ITLA or the IL Trial Lawyers Ass’n who are behind this concept are going to find some Sad Sack claimant to trot in front of favorable judges and then our Appellate/Supreme Court justices to see if they can get the courts to make this new idea work the way they want it to work so they can cash in giant legal fees in doing so.

Either way, on May 17, 2019, IL Governor JB Pritzker signed SB 1596 into law. ITLA or the IL Plaintiffs’ Bar introduced legislation in both the Illinois House and Senate (SB1596) to override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering,2015 IL 118070 (2015), where the Supreme Court held the IL Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy for Illinois workers who suffered exposures, also confusingly called “latent injuries” for conditions such as asbestosis and mesothelioma. Ed Matushek wrote the position paper of the IARDTC or Illinois Association of Defense Trial Counsel opposing this unnecessary legislation, and testified in opposition before both the Illinois Senate Judiciary Committee and the House Judiciary – Civil Committee. The Illinois Senate and House both voted to approve along party lines, without even considering any alternative to keep such claims in the IL worker’s compensation system.

SB 1596 is supposed to be legislation that helps workers who develop what are called “latent illnesses or injuries” after coming in contact with asbestos or other toxic but supposedly hidden substances in the workplace. Legal scholars feel this is impermissible special legislation that will eliminate strict liability of employers for only these injuries under the long-established work comp program and increase the threshold of proof required by a special class of injured workers in order to obtain recovery. SB 1596 basically doubles the amount of attorneys’ fees to be paid by the injured worker from the statutory 20% under the worker’s compensation system by moving the worker’s claim against the employer to the civil tort system, where the trial lawyers can assess their attorneys’ fees at 40% or more of the recovery.

One source indicates campaign contributions by our wealthy trial lawyers seeking this new law gave Illinois politicians and judges nearly $40 million during the past 17 years. We always feel judges/justices who accept campaign donations from Plaintiff lawyers trying to make new law should recuse themselves when the laws are brought to them to analyze their constitutionality.

KCB&A’s top liability lawyer, Bradley Smith was quoted in several national news sources to say:

This new law, if used as its advocates intend it to be used, will revive claims in the civil suit arena that were already barred by the Worker’s Compensation Act and the corresponding Illinois Occupational Disease Act’s statute of repose, he said. Employers should be ready to attack those potential claims aggressively from the onset. This is because the constitutional viability of applying this law retroactively is questionable at best. Bradley Smith said he was confident the law would face numerous legal challenges.

Please note this law is being jammed down the throats of the IL State Chamber and other great advocates on the management side of IL business with no negotiations or counter-balance in costs being offered by IL labor. This is not an “agreed bill,” which is the genteel way such things used to get done with give and take from both sides of the aisle. In the People’s Republic of Illinois, I can sadly forecast more gloomy news for our employers and business leaders, as the Plaintiff bar seeks to cash in.

An alternative to achieve a legislative goal of insuring some recovery for the injured employee would have been to lengthen or even abolish what is being called the WC “statute of repose” period for “latent injury” claims but always keep recovery in the longstanding system of Illinois work comp. That is not what SB 1596 does. Removing the exclusive jurisdiction of such claims from the Illinois WC Commission has consequences that may hurt the constituents our Legislature seeks to assist by creating unlimited and possibly business-busting tort liability for Illinois employers in our court system for such claims, and may have the effect of eliminating any existing insurance coverage for such claims, as I outline above. This can and will drive even more Illinois businesses and employers out of our State or into bankruptcy protection.

SB 1596 ignores the rationale for the exclusive remedy provisions of the Illinois Work Comp Act and the Workers’ Occupational Diseases Act. These Acts impose liability without fault upon the employer and, in return, prohibit expensive and unpredictable common law suits by employees against the employer. The exclusive remedy provision found in Section 5 of the Acts is part of the grand exchange in which sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, the company is also relieved of the the cost of defense and business-busting jury verdicts.

Reasonable legislation would have extended the length of the twenty-five repose period under the Acts and keep the employee’s remedy in the worker’s compensation system. Instead, this new bill places recovery for such injury in the civil tort system, where the worker relinquishes the advantage of strict liability of the employer, and as a practical matter, doubles the amount of attorneys’ fees that will be paid by the injured worker. Most important, all Illinois employers will be surprised to find that they may be suddenly uninsured for claims under this law. The practical effect of this law is to subject Illinois employers to unlimited liability for employees’ “latent injury” claims, and at the same time strip Illinois employers of their insurance for such claims. SB 1596 will adversely affect the Illinois economy, and likely reduce or eliminate the likelihood of a viable recovery by the injured worker, defeating the supposed purpose for this legislation.

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

Synopsis: The Defense Team at KCB&A Welcome Chicago’s Amazing New Mayor Lori Lightfoot.

Editor’s comment: Ms. Lori Lightfoot was inaugurated as our City’s Mayor today. She called for unity, not divisions, returning to a mantra of, “We are each other’s business.” She even mentioned our late Mayor Harold Washington, saying she felt his spirit in the room.

Mayor Lightfoot’s biggest applause came when she called for an end to the city’s legendary political corruption, most—not all—at the aldermanic rather than mayoral level.

She said: “Stopping [corruption] isn’t just in the city’s interest. It’s in the City Council’s own interest. No official in the City of Chicago, elected or appointed, should ever profit from his or her office. For years, they've said Chicago ain't ready for reform. Well, get ready, because reform is here."

Assuming she wins an initial City Council organizing vote next week and has a working majority, Lightfoot’s biggest task will be to find billions to fill a gaping hole of at least $740 million in the pending 2020 City budget. Lightfoot had better hope all of those new committee chairs she named feel they owe her, because she’ll need their votes on some very, very difficult fiscal matters that will come up quite soon.

Where will the money come from? There are no answers yet, but lots of expectations from many who voted for Lightfoot for more spending on things such as anti-gang-violence efforts, affordable housing, expanded mental health services and the like. And looming are negotiations with the Chicago Teachers Union over another new contract, and the union seems to be gearing up for another never-ending, never-satisfied war. They later indicated they want at least $2 billion that isn’t in the budget and those evil wealthy people better be ready to pony up.

From my perspective, Mayor Lightfoot is a crystal clean lawyer and solid business woman. I don’t know what her true genius is but she also has lots of geniuses around her, which is twice as good. She is, for the first time in recorded memory trying to bring in an actual City risk manager who will watch and manage GL, WC and other claims, like cities and small governments across our country have been doing for decades. We hope to see the end of the incredibly odd way such things have been managed for decades.

I have offered her team my best thoughts and ideas for the City to transition to

• Preventing/stopping and then investigating all incidents,

• Managing claims when the unforeseen happens,

• Getting injured workers back to sedentary and light work asap,

• Trying to slow or stop litigation where possible, and

• Bringing the City of Chicago into a new age of great GL and WC claims management.

I will try to keep my readers posted as this process continues.

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

5-13-2019; What to Do When the Unforeseen Happens—Incident Investigation; Illinois Doc Reportedly Bills over $1M for Care to One Claimant and more

Synopsis: What to Do When the Unforeseen Happens—Incident Investigation.

Editor’s comment: Please note I am very reluctant to use the word “accident.” All my friends and scholars in the National and Local Safety Councils have convinced me to use the term “incident” to avoid anyone implying an “accident” means compensability. The word “incident” works much better—Please consider changing your “accident investigation” forms to reflect this concept.

Either way, when a catastrophic incident occurs, prompt and efficient collection of fresh evidence is critical to minimizing your liability exposure. If you don’t get evidence in 24 hours, it will rapidly disappear. As veteran defense lawyers, we tell clients and their investigators within 24 hours of the incident, if the fieldwork has not begun and progressed well, the evidence will almost certainly fade away.

You need to record weather conditions, emergency personnel, law enforcement, and other factors, which can quickly change the incident scene and may remove critical pieces of evidence. Witnesses’ memories of specific details begin to fade as the incident is no longer fresh. As time elapses following the incident, the who, what, when, where, why, and how of a catastrophic incident will rapidly disappear.

With proper planning and coordination, incident investigators can maximize the collection and preservation of critical pieces of evidence. At the same time, prompt action can minimize common investigation errors. The key is to develop a thorough method for collecting reliable, clear, and comprehensive information about an incident which will allow for an early evaluation of liability and damages.

COORDINATION OF THE INITIAL INVESTIGATION

It may be advisable to designate an “investigation coordinator” to oversee the initial investigation in order to eliminate confusion and redundancy. It is often prudent to promptly retain the services of a KCB&A attorney and our law firm with experience in handling the initial

investigation, as well as the defense of catastrophic incidents. The benefits of involving an attorney from the very beginning of the investigation include:

• Coordination of investigative efforts to reduce duplicate and unnecessary investigation during the critical initial stages;

• Assistance with the assignment and hiring of claims adjusters, incident reconstructionists, and other specialized investigators or experts;

• Undertake necessary action to ensure the preservation of helpful evidence at the incident scene and to avoid spoliation of evidence;

• Protection of all communications concerning the investigation via the attorney-client and attorney-work product privileges; and

• Formulate an initial evaluation of the potential liability issues and gear the investigation toward the defense of impending litigation.

It is helpful to have a list of attorneys and law firms prepared in advance by state and locality, along with contact information. Retain KCB&A in IL, IN, WI, IA and MI, as we have the resources which are required to promptly coordinate the investigation and the experience to ensure the necessary

components are in place to successfully complete the initial investigation, including retention of our great team of medical, forensic and other experts.

THE INITIAL INVESTIGATION

The first call usually comes from the employee, supervisor, company, or law enforcement officials.

Obtain preliminary facts from these individuals and entities, such as:

• Whether the incident involved any injuries or fatalities.

• Extent of property damage – to vehicles, equipment, buildings, and products.

• Location, type, and configuration of incident scene.

• Incident conditions, i.e., weather, time of day, lighting, etc.

• Details of the incident, i.e., location of vehicles, equipment, buildings, or products involved, identification of witnesses, nature and extent of physical evidence, etc.

• Existence of photographs or videotapes.

Immediately Notify Insured’s Management or Employer

Compile a list of home, office, fax, e-mail, pager, and cell phone contacts for the insured company officials who will serve as contacts and assist throughout the investigation.

Gather Data and Evidence at the Incident Site

Depending on the severity of the incident, consider promptly retaining an incident reconstructionist, engineer, or other experts/investigators can aid tremendously in determining exposure, event chronology, and necessary additional investigation. After obtaining the preliminary facts, the investigation moves to the scene of the incident where there are crucial pieces of evidence that must be secured and preserved as soon as possible.

Incident Scene

Time is of the Essence

Get to the scene as soon as possible to determine the physical factors and/or conditions that may have played a role in causing the incident.

Construct a Chronology

Obtain statements from witnesses to determine the sequence of events. If the incident was a work site incident, obtain information on the directions of travel of each party to the point of injury.

Take Photographs/Videotapes

• Incident scene from various angles.

• Resting position of equipment, products or other physical evidence involved.

• Damage to all property, buildings, equipment, products or other physical evidence involved.

• Pre-incident paths of the humans, vehicles and anything that records the path.

• Area where debris landed.

• Determine existence of security video—secure it to insure it isn’t taped-over.

• Potential Police/Fire Department Computer Evidence.

• Cell phone photographs/video.

Record Road, Traffic, Weather, and Lighting Conditions

Electronic Data

Consider a potential Computer Forensic Expert

Preserve Cell Phones, iPads, etc.

Preserve Computers

Parties Involved

Record Names and addresses of:

– Injured party(ies), co-workers, supervisors, other potential witnesses.

– Owners, drivers, and passengers of all vehicles involved.

– Owners of all other property involved.

Determine the location of each party before and after the incident.

Determine which parties sustained injuries.

Identify fatalities and try to determine whether they survived the incident for any period of time.

Secure the Incident Scene

Secure the incident scene in coordination with local law enforcement to prevent further incidents, injuries, damage, and to preserve the evidence.

Summary

A catastrophic incident can occur at any time. Conducting a thorough initial investigation is critical to preserve the evidence which will serve as the foundation of the ongoing investigation and potential litigation.

In order to conduct the initial investigation, claims handlers should prepare and plan the procedures for conducting the investigation in advance. It is advisable that claims adjusters compile emergency contact information for their insureds. A roster of attorneys and independent adjusters by state and locality should be kept to allow for immediate access to investigation coordinators and investigators after a major incident.

A prompt and thorough investigation will allow you to gain an advantage in avoiding mistakes, which could otherwise result in unfavorable factual surprises later on, during litigation. Investigating and preserving the evidence will enable you mitigate the damages by settling the case early; laying the foundation for a defense to avoid prolonged litigation; and the opportunity to reduce the risk of a negative outcome in the event the case goes to trial.

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

Synopsis: Illinois Doc Reportedly Bills over $1M for Care to One Claimant!

Editor’s comment: In Ross v. Illinois Central Railroad Co., decided May 6, 2019, I was advised medical care from one physician was over $1M smackers! In the ruling, a former railroad employee sued the railroad under FELA, alleging he injured his back while attempting to board a moving train.

After investigating his claim, the railroad filed a 3rd-party complaint against Plaintiff's doctor for contribution.

The IL Appellate Court ruled the Circuit Court abused its discretion in finding settlement between Plaintiff and his doctor reached was entered into in good faith, especially as amount of settlement was far less than doctor's fair share of liability.

The Appellate Court further ruled the Circuit Court erred as a matter of law when it concluded the “common-interest” exception applied to prevent waiver of attorney-client privilege when Plaintiff and his doctor shared attorney-client privileged communications with each other.

Even when a common interest exists between parties, the client must, at time of disclosure, have an agreement with the receiving party that party will treat the information as privileged.

I appreciate your thoughts and comments. If you want the link to the ruling, send a reply.