3-25-2024; Successful Appellate Outcome for Atty Vanderford and KCBA!; Birth Defect Litigation Against Employers is Not Blocked by WC Exclusive Remedy and more

Synopsis: Successful Appellate Outcome for Defense Attorney Lindsay Vanderford and KCB&A! Court Rejects Petitioner’s Challenge to Appointment of Arbitrator and Ruling on His WC Claim.

Editor’s Comment: Please note this ruling isn’t “final” and might be subject to rehearing or a Petition for Certiorari to the Illinois Supreme Court. That said, we do feel the litigation will end.

In Osman v. IWCC, No. 2-23-0180WC, issued 03/18/2024, the Illinois Appellate Court, WC Division rejected the worker’s challenges to the appointment of the Arbitrator in his case and upheld a determination the worker failed to prove causation between a subsequent condition and a work-related accident.

Claimant Osman worked for a west suburban school district. The record indicates his foot was caught between a wall and two pallets while at work in December 2012 and he fell. He asserted injury to his right ankle.

Osman claimed he had no issues of instability with his right ankle or any problems with his knees and hips before the alleged accident. After walking with an altered gait because of his injured ankle, Osman alleged that he developed pain in both knees.

Claimant Osman was off all work for about 26 weeks, then returned to full duty.

A couple of years later, in January 2015, Osman saw Dr. Burgess, a podiatric surgeon who felt Claimant Osman had an altered gait, which Dr. Burgess felt "would causally relate the knee and hip to the accident." The problem with causal relation, in my view, is the several-year-gap from the DOL to the onset of knee/hip issues.

After a full hearing, the Arbitrator also found Osman had reached maximum medical improvement or MMI in May 2014 and he failed to prove the late-arising conditions of his knees and hips were related to his 2012 accident.

The Arbitrator also noted Osman had successfully returned to full-duty employment at the School District and had no loss of earnings. Nonetheless, the Arbitrator acknowledged Osman still had lasting complaints and wore a brace. The Arbitrator therefore awarded permanent partial disability for a 25% loss of use of the right foot. Benefits were not awarded for the leg(s).

The Illinois Workers’ Compensation Commission panel affirmed, as did a Circuit Court judge.

The Illinois Appellate Court, WC Division rejected Claimant’s argument the Arbitrator’s appointment as a state hearing officer was invalid.

“[A]lthough labyrinthine, the appointment procedures were in order and comported with what is required by the law,” the IL Appellate Court found.

The Court also found the Arbitrator had not remained in the same county beyond the period allowed by WC law. Illinois law forbids an assignment to the same county for more than two years in each three-year term, the Court found, and the Arbitrator who heard this case had served for one year of one term and 22 months in another.

The Court went on to find the IL WC Commission’s decision was not contrary to the manifest weight of the evidence.

To read the court’s decision click here.

Synopsis: Need Starter/Intermediate or Expert-level Workers’ Comp Training for your claims/risk/safety/management staff?

Editor’s comment: The defense team at KCB&A regularly provides state-of-the-art training for companies like yours. We closely watch and report on any and every change to the law and practice. With the advent of Zoom, this can be scheduled and provided easily. We can tackle your team’s toughest questions and help you make sense of a system that is challenging to understand and implement.

If you have interest in WC training, please reach out to John Campbell at jcampbell@keefe-law.com or Shawn Biery at sbiery@keefe-law.com. Or just reply to this email.

Synopsis: Children May Proceed With Tort Suit Against Parents' Employer for Texas (?) Workplace Exposure(s) Arguably Resulting in Birth Defects.

Editor’s comment: This ruling is something of an exception to the concept of “exclusive remedy” in workers’ comp. What is odd is the children cannot file suit, as they are minors and don’t have standing to sue, so the parents/workers have to sue their employer for them. It is also truly odd to see alleged exposures in Texas being brought in Illinois by the zillionaire Plaintiff lawyers here. Please note these brain defects claims have multi-million exposure for U.S. employers and we will probably see lots more of them. Please also note they are civil claims and, unless the IL Supreme Court overrules the Appellate Court, they will not be decided in the various WC admin bodies across our country.

In Fernandez v. Motorola Solutions Inc., Nos. 1-22-0884 and 1-22-0892, issued 02/29/2024, the Illinois Appellate Court ruled summary judgment was not appropriate in deciding if birth defects in children are the result of their parents' workplace exposure to chemicals.

Infants/claimants Meg Fernandez and Jonathan Johnson were born with severe birth defects. They brought separate actions in an Illinois state court against Motorola Solutions Inc., alleging their fathers were exposed to toxic chemicals and gas at a semiconductor manufacturing facility in Texas.

The Illinois Circuit Court granted summary judgment for Motorola, finding it did not owe the infant plaintiffs a duty under Texas law.

The Illinois Appellate Court said Texas law applied to the plaintiffs’ claims. The Court ruled any legal duty in Texas depends in part on whether the injury to the plaintiff was foreseeable, the court continued. A finding of foreseeability requires

“(1) that the injury be of such a general character as reasonably might have been anticipated and

(2) that the injured party should be so situated with relation to the wrongful act that injury to him or one similarly situated reasonably might have been foreseen.”

The intermediary Appellate Court noted scientific evidence was conflicting as to whether paternal exposure to toxic chemicals during the manufacturing of semiconductors causes future offspring to be born with birth defects. Thus, the Court found the evidence raises a question of material fact as to whether plaintiffs’ birth defects were the reasonably foreseeable consequence of Motorola's alleged civil negligence.

“This question of material fact cannot be determined as a matter of law but must be resolved by the trier of fact in order to determine whether a duty existed,” the Appellate Court ruled.

Motorola moved to block, asserting the exclusive remedy provision of the Texas Workers’ Compensation Act supported summary judgment in the company's favor.

The Illinois Appellate Court found while the Texas WC Act generally bars civil suits for workplace injuries by the injured worker and his heirs, the court said derivative claims under the Texas workers' compensation statute "are those where the plaintiff was not physically injured [them]self but suffered emotional or economic harm due to the physical injury to the employee, e.g., claims for loss of consortium or wrongful death.”

Since the cases involve infant plaintiffs seeking recovery for their own injuries, separate and apart from any workplace injuries/exposures to their fathers, the exclusive remedy doctrine does not apply, the Appellate Court found.

To read the court’s decision, click here.

3-8-24; Law Update; Chicago School Teacher's Challenging Fall Found Compensable; WC Claims Appear to be "Doubling" into Civil Rights Claims and more

Synopsis: So, Can We Deny All Idiopathic Falls in IL WC? Not So Fast, the Devil is in the Details! Opinion and comments by John Campbell, J.D.

Editor’s comment: This Month, We Review the decision in Chicago Board of Education v. IWCC IL APP (1st) 1-22-0341WC (issued March 17, 2023)

Although we have seen recent rulings where idiopathic (or completely unexplained) falls are denied under IL WC as non-compensable, the Workers’ Compensation Division of the Illinois Appellate Court finds an Idiopathic fall may STILL be compensable where the work environment was a contributing factor to the injury.

Petitioner worked as a Chicago school-teacher at a location with two buildings; she was required to walk between the buildings and navigate stairs several times per day. That doesn’t sound “dangerous” to us. Specifically, she was required to climb 25 stairs to clock-in and out each day. On the date of injury, she had just clocked out and began descending stairs with a co-worker when she fell, suffering injuries to her back and multiple limbs. The ER records reflected a history of “feeling light-headed and passing out” leading to the fall. This medical history was repeated days later at her personal doctor.

At trial, Petitioner disputed these medical histories and, under oath, alleged she slipped on wet stairs from snowy conditions. Of particular importance, this fact was supported by her co-work witness’s testimony as well.

Ruling:

While the Arbitrator found Petitioner’s testimony not credible, and ruled her fall was caused exclusively by an idiopathic condition of syncopal episode, the IL WC  Commission panel reversed and awarded benefits, concluding

(1) dilapidated and worn stairs contributed to the fall and also

(2) because Petitioner was required to navigate 25 stairs to clock-in and out each day, the employment contributed to her injuries by placing her in a position of increased risk.

After a routine affirmation by the circuit court, the IL Appellate Court, WC Division accepted review and similarly affirmed the Commission but for slightly different reasons.

The Appellate Court, WC Division found greater evidence that the stairs were wet and slippery (not necessarily worn), based on Petitioner’s testimony and her co-worker’s testimony. Thus, the Appellate Court found alternative sufficient evidence of a work-related condition contributing to the fall. In ruling so, they cited case-law finding “an idiopathic fall may be compensable if the employment significantly contributed to the injury by placing the employee in a position increasing the dangerous effects of the fall.”

However, perhaps more concerning from the defense perspective, the Court further commented that here, “the employer required claimant to traverse a flight of stairs at least two times a day to clock in and out of work” and the fall occurred immediately thereafter.

Analysis:

We are always troubled when an arbitrator makes an initial denial ruling based on Petitioner (lack of) credibility that gets reversed on review, as occurred here. Please note the only person to consider actual live testimony is the Arbitrator assigned—the rest of the folks in the system are simply reviewing a transcript and never see Claimant’s sworn testimony under oath.

Further, not one but two medical records cite Petitioner’s initial history of growing dizzy and losing consciousness as the cause of the fall, with no mention of wet stairs. That means Claimant told two different medical historians a conflicting version of this event.

It seems to us that Petitioner did not come off credible at trial, and the medical history from two initial providers is likely more accurate. It is always a red flag when the medical history magically changes weeks after an incident to fit a more compensable fact pattern.

In the end, we do have to acknowledge that wet/slippery conditions can certainly trigger a compensable condition leading to a fall down stairs. However, the more interesting question is whether our IL Appellate Court would have found this compensable ABSENT the wet conditions, where the Court also pointed out the necessity to navigate the stairs twice per day. It remains unclear if compensability would be upheld without the snowy/wet conditions present.

Practice Tip:

For risk/safety managers, or anyone responsible for investigating injury incidents, this case exemplifies why a thorough incident investigation and documentation is critical to a solid defense. Witness statements at the time of the incident may have further substantiated the loss of consciousness vs. an alleged slip as the cause… were the stairs even wet? Photos or video of the area could have proven that point. Evidence must be gathered immediately to accurately assess compensability and afford opportunity for valid defenses.

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

Synopsis: “Exclusive” WC Remedy Not Exclusive in relation to Employee’s Civil Rights Claim for Forced/Mistaken Strip Search—This Ruling is from a Virginia Federal Appellate Court But May Be Coming Across the Country To WC Claims Like Yours.

Editor’s comment: We are seeing a clear trend of Claimants and attorneys trying to maintain parallel claims for WC and employment rights. We don’t agree with this trend but the industry has to be aware of this new change to your claims handling/practices.

A federal appellate court from the East Coast ruled neither qualified immunity nor the exclusive remedy provision of the State of Virginia’s Workers’ Compensation Law barred a nurse’s civil rights claims of being inappropriately strip-searched as she reported for a job assignment at a jail.

Claimant Amisi came to the Riverside Regional Jail to work as a contract nurse. When she arrived, she didn't know where to go for orientation, so she asked a jail sergeant for help. The sergeant directed Claimant to enter the back door of the jail's pre-release center, which housed "weekender" inmates serving nonconsecutive sentences. When weekenders arrive, these inmates have orientation and complete the jail's intake process, including strip and pat down searches.

A jail officer instructed Claimant to take a seat in the intake area. While Claimant was waiting, a female Officer came in. She directed Claimant to follow her into the women's locker room shortly thereafter, the female officer then strip-searched Claimant and conducted a pat down search after Claimant dressed.

Other than the discomfiture with having to be searched by a female guard, the ruling doesn’t outline anything that we would characterize as an incident or injury. The ruling also doesn’t outline any objection by Claimant to the search. After Claimant returned to the intake area, a female weekend coordinator was informed Claimant worked for the jail's health contractor, and she called a nurse to retrieve Claimant for the prison’s nurse orientation.

Claimant later sued all of the jail staff, alleging they violated her Fourth Amendment right to be free from unreasonable searches and seizures. She also brought a variety of Virginia state law tort claims.

Defendants moved for summary judgment, challenging the nurse’s claims on the merits and asserting qualified immunity and Virginia good-faith immunity. They also asserted that the Virginia Workers' Compensation Act barred Claimant’s state law claims. The federal district court denied their motions and an appeal was taken to the federal appellate court—please note the next level of appeal would be the U.S. Supreme Court..

The U.S. 4th Circuit Court of Appeals ruled neither jail staff members were entitled to qualified immunity. “Taking Amisi's account as true, Brooks acted unreasonably when she mistook Amisi for an inmate, not an employee,” the court said, as Amisi testified she told Brooks she was a nurse and asked if employees of the jail needed to be strip-searched.

“While Brooks disputes these facts, that's for a jury to decide, not us,” the federal appellate court said. “We decide only whether those facts are material, which they are.” The court also said it was clearly established law when prison staff strip-searched Amisi that she couldn't do so without individualized suspicion that Amisi possessed contraband.

As for Townsend, the court said he effected a seizure of Amisi, since his actions would have led a reasonable person to believe that she wasn't free to leave. Claimant Amisi further testified she told Townsend she was an employee reporting for work, and he admittedly didn't see Amisi's name on his list of weekender inmates. These facts, if proven, suggest that Townsend's mistaken belief Amisi was an inmate was unreasonable, the court said.

Most important for WC risk and claims managers, the federal appellate court went on to say neither Brooks nor Townsend were protected from civil liability by the exclusivity provision of the Virginia Workers' Compensation Act. The court said this case presented a close question, but it concluded Claimant Amisi's injuries didn't arise out of her employment. “Though Amisi may not have gone to the jail but for her employment, she faced the same risk of an erroneous search as any visitor arriving to the jail for the first time,” the court reasoned. Additionally, the court said, Amisi wouldn't regularly be exposed to a search while on the job, since by her second day, she knew not to go to the pre-release center.

To read the court’s decision in Amisi v. Brooks, Nos. 21-1960 and 21-1962, 02/22/2024, published, click here.

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

2-4-2024; Shawn Biery's New IL WC Rate Sheet is Out--Max PPD rate is up to $1,024.87 for DOL 7/1/23 and later--check your reserves; John Campbell-Tim O'Gorman Chronicle New IL HR Laws and More

Synopsis: AS WE ARE NOW IN 2024—IL WC BENEFIT RATES STILL SPIRAL UP ENDLESSLY??—SHAWN BIERY’S UPDATED IL WC RATE SHEETS AVAILABLE FOR ACCURATE WC RATES AND RESERVING!!! 

Editor’s comment: The IWCC has posted a new TTD rate of almost $2,000 a week going into 2024 and max PPD RATE is now well over $1,000.

FYI, Illinois WC rates have updated again so please be aware of the New IL WC Rates or your claims handling will suffer and penalties may ensue. Please also note that the IL State Min Wage is now $14 per hour and will rise another dollar on New Year’s Day, 2025. With the already mandated increases the IL WC rates will again increase for sure. You may also note the City of Chicago’s minimum wage is already $15 per hour—this is important in IL WC wage differential claims.

Illinois WC system appears to have the fourth highest max rates in the entire country. If you look online at https://secure.ssa.gov/poms.nsf/lnx/0452150045#c16, you may note our IL WC rates are double or more than our sister States and because of the statutory increases built into the IL WC Act, this anti-business disparity will only increase. It clearly appears our IL WC Rates are going up much faster than inflation.

Email Marissa at mpatel@keefe-law.com to Get a Free and Complimentary Email or Hard Copy of Shawn R. Biery’s Updated IL WC Rate-Sheet! You can also send any questions to Shawn at sbiery@keefe-law.com

As we have mentioned in the past, since the 1980’s, the IL WC Act provides a formula which effectively insures no matter how poor the IL economy is doing, WC rates continue to climb.

As we indicate above, rising minimum wages will strip value from Illinois’ expensive wage loss differential claims. We feel reserves and settlements need to reflect the legislative boost to anyone who has any job. If you aren’t sure how this works, send a reply to Shawn or Gene Keefe.

We caution our readers to pay attention to the fact the IL WC statutory maximum PPD rate is $1,024.87. However, this rate is only going to be valid through June 30, 2024 and the new max PPD will be published in January 2025. When it will be published in January 2025, this rate will change retroactively from July 1, 2024 forward. At that time, if you don’t make the change, your reserves will be incorrect--if this isn’t clear, send a reply.

The current TTD weekly maximum has risen to $1,897.92. An IL worker has to make over $2,846.88 per week or $148,037.76 per year to hit the new IL WC maximum TTD rate.

For WC Death Benefits: The new IL WC minimum sped past the $750k floor for surviving widows/widowers. That amount is now 25 years of compensation or $711.72 per week x 52 weeks in a year x 25 years or $925.236!! The new maximum IL WC death benefit is now over $2 million at the max $1,897.92 times 52 weeks times 25 years or a lofty $2,467.30 plus burial benefits of $8K. IL WC death benefits are paid for 1,300 weeks—in contrast, IN WC death benefits are paid for 500 weeks.

IL WC death benefits also come with annual COLA increases which we feel can potentially make Illinois the highest in the U.S. for WC death claims—again if you aren’t sure about this issue, send a reply to Shawn or Gene. It is also possible to settle IL WC death benefits for a discounted lump sum—again, if you have interest, send a reply to Shawn or Gene.

The best way to make sense of all of this is to get Shawn Biery’s colorful, updated and easy-to-understand IL WC Rate Sheet.  If you want just one or a dozen or more, simply send a reply to Marissa at mpatel@keefe-law.com  AND you can also send any questions to Shawn at sbiery@keefe-law.com They will get a copy routed to you once we get laminated copies back from the printer—hopefully before they raise the rates again! Please confirm your MAILING ADDRESS to Marissa if you would like laminated copies sent to your home or office!

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

Synopsis: “Our lives, our liberty, and our property are never in greater danger than when Congress is in session.” -Mark Twain. Additional Legal Thoughts, Comments and Opinions by John P. Campbell and Timothy O’Gorman.

Editor’s Comment: As we rapidly enter the second month of 2024, employers need to be sure to keep up with the new Illinois laws impacting businesses throughout the state. Below is a brief summary of new employment laws that IL Human Resource Managers and staff should learn and understand, lest you step into one of the new HR bear traps set by our friends in Springfield.

**Please note** This is NOT a comprehensive list of new laws or intended as legal guidance; we strongly recommend consulting your legal counsel to implement and update your HR policies and handbooks for proper compliance.

1. Illinois Personnel Records Review Act

The Illinois Personnel Records Review Act (IPRRA) has been amended to permit employees to obtain copies of their personnel records more easily. As of January 1st, employers must email or mail a copy of the employee’s records to the employee upon their written request, regardless of whether the employee can show that they are unable to inspect the records in person prior to receiving a copy. Employers can charge copy costs as may be needed. Assuming the old time limits still apply, you have 7 days to send but can ask for a 7 day extension. Either way, this does happen in WC claims and very few folks know of the rapid speed required to timely reply.

1. IL Paid Leave for All Workers Act

Effective January 1, 2024, the Illinois Paid Leave for All Workers Act (PLAWA) compels Illinois employers to provide their covered employees up to 40 hours of paid leave per year, to be used “for any purpose.”

On November 3, 2023, the Illinois Department of Labor (IDOL) proposed regulations interpreting the Act. Where paid leave is accrued, the Act indicates that “all” accrued but unused paid leave must carry over from one 12-month period to the next. Proposed regs state that “employers may establish a reasonable policy . . . restricting employees’ ability to carry over more than 80 hours of unused paid leave.”

1. Cook County Paid Leave Ordinance

Not to be outdone, and in what appears to be an entirely duplicative law, Cook County adopted the Cook County Paid Leave Ordinance as well. This appears to largely mirror the requirements of the Illinois Paid Leave for All Workers Act (PLAWA). The County Ordinance does extend to workers covered by a CBA in logistics (delivery and transport/freight).

The Cook County Commission on Human Rights will enforce this new rule where damages and attorney fees can be assessed.

For those of us within Chi-town city limits, you should note a similar “triplicative(?) ordinance is expected from the City of Chicago sometime later this year.

1. Amendments to the Illinois Day and Temporary Labor Services Act

There are equal pay requirements for daily and temporary workers assigned to a third-party client for over 90 calendar days in any 12-month period. These workers must now be paid at least as much as the lowest paid directly hired comparative employee.

In what appears a common-sense safety requirement, the day and temporary labor service agency and the third-party client must provide safety training specific to the temporary laborer’s job site.

A separate provision may impact what was formerly called “scab” workers crossing a union picket line. Moving forward, before a temporary laborer can be sent to a worksite where a strike is occurring, the service agency must not only advise the temp worker of the dispute, but the temp worker has the right to refuse the assignment without prejudice to receiving another assignment.

1. IL Employee Blood and Organ Donation Leave Act

The updated Employee Blood Donation Leave Act has been amended to include paid time off for organ donors. Employers with 51 or more employees must provide any full-time employee who has been employed for six months or more with paid leave to donate blood or an organ. Employees may use up to an hour to donate blood every 56 days. Additionally, employees are permitted to take up to 10 days of leave in any 12-month period to serve as an organ donor. Please note there are additional provisions for extended time for organ donation up to 30 days, but that is unpaid leave protection.

1. Illinois Freelance Worker Protection Act

The Freelance Worker Protection Act (FWPA), establishes strict protections for freelance workers… basically anyone hired as an independent contractor for only $500 or more! The FWPA sets forth three requirements for hiring or retaining a freelance worker:

(1) The agreement for work must be memorialized in a written contract;

(2) Payment to a freelance worker is required within 30 days following completion of the services or product; and

(3) Companies or contracted entities cannot engage in any discriminatory, retaliatory, or otherwise harassing behavior toward freelance workers.

It is important to note, the Act specifically excludes construction workers, which we reckon would be the most common type of independent contractor.

1. Amendments to the Unemployment Insurance Act Include Independent Contractors!

Now, within 20 days of hiring any new employees or independent contractors, Illinois employers must submit the new hire’s information via the Internal Revenue Service’s Form W-4 or and equivalent form for purposes of tracking unemployment insurance requirements.

Employers will receive a fine of $15 for each individual they fail to report. The Illinois Department of Employment Security will notify the employer of noncompliance, offering a 21-day grace period to submit the information. However, be warned that “Knowingly” submitting a false or incomplete report will warrant a larger fine of up to $500 per person.

One wonders how businesses have time to actually provide goods and services while navigating the new laws each year… a bit like drinking from a fire hydrant! If you find the need for further legal guidance on these or any labor or employment issues, please do not hesitate to contact our office.

Again, this article is intended as a preliminary “FYI” for Illinois employers and we recommend consulting your employment counsel for compliance and implementation of any new employment laws.

Synopsis: IRS Boosts Mileage Rate for 2024

The IRS is raising the standard mileage rate by 1.5 cents per mile for 2024.

The agency announced the business standard reimbursement rate per mile is rising to 67 cents per mile, up from 65.5 cents for 2023, beginning Jan. 1, 2024.

Please note based on IL case law, this rate is used to defray the cost of mileage to IME’s.

We recommend using Google maps to ascertain the mileage from Claimant’s home to the IME docs office and back, multiply by .67 and send the check with the IME notice.