August 17, 2020

8-17-2020; Kevin Boyle, JD on "Must Read" for Construction Liability Claims; AMA Guides for Impairment Going Online and more

August 17, 2020/ Eugene Keefe

Synopsis: Federal Seventh Circuit Court of Appeals rules in Indiana case that Property Owner, Contactors Not Be Held Civilly Liable for Worker’s Fall. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Independent Contractor’s Employee was Unable to Pursue Negligence Claims Against Various Parties to the Construction Contracts. Jeffords v. BP Products North America Inc., Case No. 19-1533 (7th Cir. June 29, 2020).

BP has an oil refinery in Whiting, Indiana and hired Fluor Constructors to provide engineering, procurement and construction management services for a project. BP and Fluor each entered into separate contracts with MC Industrial for the construction work. BP also contracted with Central Rent-a-Crane for crane operation services. Central had no contracts with Fluor or MCI.

Mr. Jeffords worked for Central, and while on the catwalk of the crane he lost his balance, fell and suffered injuries. He filed a negligence suit against BP, Fluor and MCI. The Northern District, Hammond Division judge granted summary judgment for defendants, finding that none owed a duty of care. The Court of Appeals affirmed applying Indiana law.

The court held that plaintiffs asserting negligence claims must prove that defendant owed him a duty of care and breached it in a way that caused injury. The court said that even if it accepted the premise that BP, MCI and Fluor all could be characterized as general contractors or construction managers, that did not mean they owed a duty of care to Mr. Jeffords as the employee of an independent contractor. Whether a duty exists depends solely on the language of the contracts.

While MCI was contractually charged by Fluor with responsibility for the safety of its subcontractors' employees, Central was not MCI’s subcontractor. Therefore, MCI owed no duty of care to Mr. Jeffords under its contract with Fluor. The court also noted that none of the contracts contained language imposing on any defendant a specific legal duty toward, or expressly assigning responsibility for the safety of, Central's employees.

Fluor and MCI had contractual obligations to take reasonable precautions related to sanitation and health for the safety of its personnel and the personnel of others, and to protect all work done and all materials furnished, but this language was designed to protect property, not people.

It was noted that defendants additionally had contractual obligations to comply with regulations promulgated under OSHA, but the Court held that contractual promises cannot be enforced by anyone not a party to them, in privity with a party to them, or an intended beneficiary of them. Mr. Jeffords was not a party or in privity with a party to any of defendants' contracts. Finally, the Court found that none of the defendants had assumed duties of care toward Mr. Jeffords by their conduct, and that BP could not be held vicariously liable for negligence by Fluor or MCI, since neither owed him a duty of care.

To read the federal court’s decision, click here.

This analysis was researched and drafted by Kevin Boyle, JD, KCB&A’s IN defense team leader. Kevin can be reached for thoughts, comments and defense of IN or IL WC/GL and EPLI claims.

Synopsis: Impairment Ratings Protocols To Morph from AMA Guide Books to Online Guidelines.

Editor’s comment: When the Workers' Compensation Institute's national conference convenes this week online, enormous interest will be focused on the American Medical Association's new concept for issuing valid impairment rating guidelines in the work comp arena. To the extent the IL WC Act contemplates impairment ratings as a method for choosing “permanent partial disability,” this is important to claims and risk managers and lawyers on both sides.

The AMA “Big Book” Will End In This Cyber-Era

Books are much out of style in this digital age. We expect the AMA’s prior practice of releasing a large and complex hardcover version of their AMA Guides to the Evaluation of Permanent Impairment every 10 years or so is going to forever end. Versions of these Guides were adopted by more than 30 states' workers' comp statutes, and the latest, the Sixth Edition, has been challenged by appellate court decisions in two states.

In response, the AMA will start to offer the Guides in an online fashion only, perhaps by subscription. They will revise them in “real time,” constantly updating and evaluating impairment ratings as medical evidence evolves and input from all sides of the WC matrix flow in.

Once this online capability starts, for the first time, if any party objects to the formula to create an impairment rating, they'll be able to quickly petition an AMA panel of experts to revise the AMA Guides. This process will allow for peer review and input from a range of specialists. The main focus is to create a formulary that is open to input from all sides—a more “transparent process,” in the words of one expert.

One question from worker advocates is whether the new system, in the works for more than a year, will lead to substantial changes in the current impairment ratings.

Many Veteran Observers Don’t Expect Significant Change

In our view, Claimant lawyers oppose anything that limits their ability to get high impairment values from hearing officers and maximize claimant and their recoveries. Any “science” that limits their involvement, influence and income is certain to be criticized. For that reason, we feel there will be court challenges to follow whatever the online AMA Guides might do to limit Plaintiff/Petitioner recoveries.

One proposal under consideration by the AMA panel would refine functional inventories, which include exercises and questionnaires that help measure impairment. Another would require use of the newer version of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders to help doctors assess mental and behavioral issues.

The defense team at KCB&A still recommends our clients consider getting an impairment rating on any significant WC claim, as such ratings are admissible and provide lower values than traditional IL Permanent Partial Disability levels. There is no “science” of any kind supporting how our hearing officers used to and still set PPD values in pretrials and decisions—they go by tradition and a “seat of the pants” view of what to write. We feel this is contrary to what the AMA Guides and impairment ratings are supposed to provide—reproducible and scientific values.

You Can Still Register and Participate in the WCI Virtual Conference That Starts Tomorrow—It is Free and Should Be Informative

https://event.vconferenceonline.com/microsite/html/event.aspx?id=1693

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

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

August 07, 2020

8-7-2020; Ottawa IL Appellate Court Dramatically Changes Liability/WC Law for IL Staffing Industry; Gov. Pritzker Appoints Two New Pro-Labor Arbitrators and more

August 07, 2020/ Eugene Keefe

Synopsis: Must Read for All IL Staffing Companies!! Ottawa Appellate Court Dramatically Changes Liability/WC Law for IL Staffing Industry. Research and Analysis by Lindsay Vanderford, J.D.

Editor’s Comment: In a split 2-1 Decision, the 3d District Appellate Court decided an appeal from the Circuit Court’s grant of dismissal of a common law or general liability lawsuit in favor of a worker attempting to sidestep the plain meaning of the IL WC Act in Jaime Quintana v. Ferrara Candy Company, Appeal No. 3-19-0414, Circuit No. 17-L-890.

In a split decision, the Third District Illinois appeals panel comprised of Justices McDade, Wright, and Holdridge held a temporary worker, injured while working at a Ferrara Candy plant, may be able to avoid the exclusivity provision of the IL WC Act and bring a WC claim and also sue his temporary employer in Circuit Court if a finder of fact decides he is not a “borrowed employee.” Ferrara filed a Motion to Dismiss, arguing that legal relationship was clear, and the negligence suit filed by Quintana directly violated the exclusivity provision of Section 5 of the IL WC Act. Justice McDade penned the majority decision which asserts, “the existence of that relationship is not so clear to an average worker … that the question should be taken from the finder of fact and resolved by the court as a matter of law.”

Pertinent facts of the underlying suit are that Quintana was employed by Elite Staffing, the agency which assigned him to work at the Ferrara plant. On November 11, 2015, Quintana was injured when wooden pallets from a forklift operated by a Ferrara employee fell on him. On October 12, 2017, Quintana filed a complaint against Ferrara, alleging negligent training or supervision of the forklift operator.

Ferrara moved to dismiss, contending that under the Illinois Workers’ Compensation Act, Quintana was a “borrowed employee” and was barred from suing his “borrowing employer.” As we are all aware, the Act limits borrowed employees, precluding them as a matter of law from maintaining civil actions against their borrowing employers. The “exclusive” vehicle for remedy against a borrowing employer is to seek workers’ compensation for any employment-related injuries.

Quintana argued the borrowed employee relationship did not exist because he signed a waiver, prepared by Ferrara and given to all assigned employees, disclaiming any direct employee-employer relationship with Ferrara Candy. The waiver stated, “I agree that I am solely an employee of staffing firm and that I am eligible only for such benefits as Staffing Firm may offer to me as its employee. I further understand and agree that I am not eligible for or entitled to participate in or make any claim upon any benefit plan, policy or practice offered by Ferrara.”

Please note we do not feel that waiver language is well-drafted and consider it confusing. If you are using such a waiver, we strongly suggest you reply or contact Lindsday Vanderford or the defense team at KCB&A if you want better or more appropriate language for such a waiver.

At the lower level, Circuit Judge Raymond Rossi agreed with Ferrara that Quintana’s status as a borrowed employee was clear, dismissing the case. We thoroughly support Judge Rossi’s seasoned opinion noting his lengthy tenure in Will County’s Twelfth Judicial Circuit Court.

Quintana appealed, and Justice McDade reconsidered the borrowing employer issue noting a two-prong inquiry was required to determine whether a borrowed-employee relationship was created. The first prong,

(1) whether the alleged borrowing employer had the right to direct and control the manner in which the employee performed the work, she found to have been established.

(2) The second prong, whether there was an express or implied contract of hire between the employee and the alleged borrowing employer, she found muddled by the wording of the benefits waiver and Quintana’s understanding of same.

McDade noted the waiver referred to “any benefit plan, policy or practice offered by Ferrara,” with “policy or practice” potentially understood by Quintana to mean Ferrara was not offering him employment and thus not “offering” workers’ compensation. Notably, and as pointed out by the dissent, eligibility for benefits under the IL WC Act is determined by law and isn’t an option. Any right to those benefits cannot be validly waived by an employee pre-accident.

Despite that clarity of the law, Justice McDade questioned whether Claimant Quintana knew or should have known that, despite the seemingly definitive contrary language of the waiver he signed, he had nonetheless entered an employer-employee relationship with Ferrara. Though McDade admits Quintana had entered the relationship, the decision concludes, “The majority finding is that the existence of that relationship is not so clear to an average worker reading that specific waiver language that the question should be taken from the finder of fact and resolved by the court as a matter of law.” Justice Wright signed on.

Justice Holdridge who is a veteran and knowledgeable WC appellate court member, dissented arguing a plain reading of the waiver reveals it to limit Quintana’s eligibility solely for internal employee benefit plans. He disagreed with the majority’s suggestion the waiver is open to a second interpretation, that Ferrara was somehow attempting to decline Quintana workers’ compensation coverage, calling that interpretation “contrary to law” and a stretch.

In pertinent part, Holdridge noted, “Workers’ compensation is not some type of elective program that an employer may voluntarily offer at its discretion — it is statutorily required by state law. Therefore, I fail to see how workers’ compensation is encompassed within this language and was waived by Quintana.” He further commented, “the majority’s second interpretation strains to find an ambiguity where none exists, is unreasonable, and leads to an absurd result.”

Notably, this decision was filed under Supreme Court Rule 23 and may not be currently cited as precedent by any party except in very limited circumstances. We find this lack of precedent favorable and agree with Justice Holdridge’s sentiments regarding its absurdity. In the absence of any further appeal, we trust the finder of fact will consider the evidence and determine Petitioner was clearly a borrowed employee and subject to the limitations of the IL WC Act as is any other worker.

This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with any questions related to workers’ compensation defense and employment law defense at lvanderford@keefe-law.com.

Synopsis: Gov. Pritzker Announces Two Plaintiff Attorneys Appointed to Arbitrator Positions at the IWCC.

Editor’s comment: Illinois has the odd spectacle of having a billionaire Governor who is wholly pro-labor. We assume his slant will continue and hope our State and its economy will survive him. That said, we are certain both of these appointments are solid attorneys, highly professional and know the IL WC Act inside and out.

Governor JB Pritzker announced the following appointments in his administration:

Jeanne AuBuchon will serve as Arbitrator on the Workers’ Compensation Commission.* AuBuchon is a Plaintiff personal injury and criminal defense attorney at AuBuchon Law, LLC. AuBuchon is a member of the American Bar Association, Illinois State Bar Association, St. Clair County Bar Association, East St. Louis Bar Association, National Association of Counsel for Children, and Land of Lincoln Legal Assistance Foundation Pro Bono Bar. She sits on the Board of Directors for the Lansdowne Community Initiative and is a Precinct Committeewoman for Sugar Loaf Township in St. Clair County. She earned her Bachelor’s in Journalism from University of Missouri-Columbia and Juris Doctorate from St. Louis University School of Law.

Gerald Napleton will serve as Arbitrator on the Workers’ Compensation Commission.* Napleton is Associate Attorney at Ridge & Downes, PC where he handles prosecution of worker’s compensation and personal injury matters for injured clients. Napleton is a member of the Illinois State Bar Association, where he serves as Chair of the Workers Compensation Section and served as Chairperson of the Young Lawyers Division in 2016. He is also a member of the Illinois Bar Foundation, where he served as Board Member in 2017 and Fellow from 2015 to present. Napleton is also the President of the Marist High School Law Association and Bagpiper with the Shannon Rovers Irish Pipe Band. Napleton earned a Bachelor of Business Administration (Management), Bachelor of Arts (Philosophy) from Saint Xavier University and Juris Doctorate from DePaul University College of Law.

* Appointments pending confirmation by the Illinois Senate.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
Investigate and verify claims for other workers possibly not covered by the Rules and
Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.